United States v. Gamez-Ortiz

176 F. App'x 522

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2006

Charles R. Fulbruge III Clerk No. 05-40764 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SILVIA MARIA GAMEZ-ORTIZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2339-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Silvia Maria Gamez-Ortiz (Gamez) appeals her guilty plea

conviction and sentence for attempted illegal reentry after a

previous deportation. She argues that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Gamez’s challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).

Although Gamez contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-40764 -2-

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.), cert. denied, 126 S. Ct. 298 (2005).

Gamez 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.