                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                              F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                                March 7, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                           Charles R. Fulbruge III
                                                                                                   Clerk


                                            No. 04-51385
                                          Summary Calendar



UNITED STATES OF AMERICA,

                                                                                         Plaintiff-
                                                          Appellee,

                                                 versus

GUILLERMINA CISNEROS-DE VERA,

                                                                                       Defendant-
                                                          Appellant.

                       -------------------------------------------------------------
                           Appeal from the United States District Court
                                  for the Western District of Texas
                                    USDC No. 2:03-CR-657-ALL
                       ------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Guillermina Cisneros-De Vera appeals her bench-trial conviction and sentence for being an

alien who illegally re-entered or was found in the United States without the consent of the Attorney

General after having been deported, in violation of 8 U.S.C. § 1326. Cisneros argues that the

evidence was insufficient to prove beyond a reasonable doubt that she is an alien. She argues that as



       *
           Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
the daughter of a mother who was born in the United States, she had “derivative citizenship.” After

all of the evidence in the light most favorable to the Government, we hold that there was substantial

evidence from which any rational trier of fact could have found beyond a reasonable doubt that

Cisneros’s mother was not born in the United States and thus was not a United States citizen from

whom Cisneros could derive citizenship. See United States v. Turner, 319 F.3d 716, 720-21 (5th Cir.

2003).

         Cisneros also argues that her 57-month sentence violates the Due Process Clause because it

exceeds the maximum two-year sentence for the § 1326(a) offense charged in the indictment. Her

constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235

(1998). Although Cisneros contends that Almendarez-Torres was incorrectly decided and that a

majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005). Cisneros properly concedes that her argument is

foreclosed in light of Almendarez-Torres and circuit precedent, but she raises it here to preserve it

for further review.

         AFFIRMED.




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