United States v. Gonzales-Gonzales

108 F. App'x 914

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 10, 2004
• Docket: 04-10279
• Status: Unpublished

Opinion

PER CURIAM: *

Huberto Gonzales-Gonzales (“Gonzales”) entered a guilty plea to a violation of 8 U.S.C. § 1326 for being found in the United States subsequent to deportation and without having obtained permission to re-enter. The district court sentenced Gonzales to sixty-four months of imprisonment and three years of supervised release.

The sole issue raised in adversarial fashion is whether Gonzales’s prior conviction that resulted in his increased sentence under 8 U.S.C. § 1326(b) was an element of the offense that had to be alleged in the indictment. Gonzales acknowledges that his argument is foreclosed by Almendarez-Torres 1 but he seeks to preserve the issue for Supreme Court review in light of the Court’s more recent Apprendi decision. 2 Apprendi did not overrule Almen darez-Torres. 3 Accordingly, the judgment of the district court is AFFIRMED. The Government’s motion for summary affirmance is GRANTED. The Government’s motion to dismiss the appeal and motion for an extension of time to file a brief are DENIED as moot.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 . Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

2 . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

3 . See id. at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied, 540 U.S. 935, 124 S.Ct. 358, 157 L.Ed.2d 245 (2003).