* 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should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

August 22, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50762

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GUARIONEX MARMOLEJOS-AGRAMONTE, also known as Pedro LebronGutierrez

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:05-CR-1040-ALL

Before KING, DAVIS and CLEMENT, Circuit Judges.

PER CURIAM:*

Guarionex Marmolejos-Agramonte appeals his guilty plea conviction and

sentence for illegal reentry into the United States after deportation following an

aggravated felony conviction in violation of 8 U.S.C. § 1326. He challenges the

constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the offense that must
No. 06-50762

2

be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).

Marmolejos-Agramonte’s constitutional challenge is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235 (1998). Although he contends that

Almendarez-Torres was incorrectly decided and that a majority of the Supreme

Court would overrule Almendarez-Torres in light of Apprendi, 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.

2005). Marmolejos-Agramonte properly concedes that his argument is foreclosed

in light of Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

Marmolejos-Agramonte argues that his trial counsel was ineffective in that

he did not request a four-level downward departure pursuant to the fast track

program under U.S.S.G. § 5K3.1 during the plea negotiations. This court

generally will not consider claims of ineffective assistance of counsel on direct

appeal except in those “rare cases where the record allowed [this court] to

evaluate fairly the merits of the claim.” United States v. Higdon, 832 F.2d 312,

313-14 (5th Cir. 1987). Although the district court did not have the opportunity

to develop the record concerning this issue, further development of the record is

not necessary for the resolution ofthis issue. The Western District of Texas does

not have a fast track program under § 5K3.1. See United States v. Aguirre-Villa,

460 F.3d 681, 682-83 (5th Cir. 2006), petition for cert. filed, 75 U.S.L.W. 3707

(U.S. June 29, 2007) (No. 06-7792) . Therefore, Marmolejos-Agramonte’s counsel

was not ineffective for failing to raise a meritless argument. See United States

v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

Marmolejos-Agramonte states in one sentence that his due process rights

were violated because he was convicted and sentenced in the Western District

of Texas, which does not have a fast track program, while defendants in some

other districts such as a the Eastern District of California can seek a downward
No. 06-50762

3

departure under the fast track program. Because Marmolejos-Agramonte does

not address this issue in the body of his brief, he has waived this issue on appeal.

See United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).

AFFIRMED.