United States v. Gomez-Moreno

153 F. App'x 299

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT November 9, 2005

Charles R. Fulbruge III Clerk No. 05-40200 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL ENRIQUEZ GOMEZ-MORENO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1785-ALL --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Manuel Enriquez Gomez-Moreno appeals from his guilty-plea

conviction for illegal reentry of a deported alien. For the

first time on appeal, Gomez-Moreno argues that 8 U.S.C. § 1326(b)

is unconstitutional on its face and as applied in his case

because it does not require the fact of a prior felony or

aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt. Gomez-Moreno acknowledges that

his argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), but asserts that the decision has been cast

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40200 -2-

into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

He seeks to preserve his argument for further review. Apprendi

did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at

489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000). This court must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotation marks and citation

omitted).

AFFIRMED.