United States v. Gonzalez-Alanis

86 F. App'x 773

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 2004
• Docket: 02-41613
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 02-41613 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN GONZALEZ-ALANIS, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-863-ALL --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Benjamin Gonzalez-Alanis (“Gonzalez”) appeals the sentence

imposed following his conviction for illegal reentry into the

United States after commission of an aggravated felony. He

argues that 8 U.S.C. § 1326(b)(2), which was used to enhance his

sentence based on his prior aggravated felony conviction, is

unconstitutional.

Gonzalez acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41613 -2-

asserts that the decision has been cast 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).

Gonzalez further argues that a conflict exists between the

district court’s oral pronouncement of sentence and the written

judgment because the written judgment contains a condition of

supervised release prohibiting the possession of a dangerous

weapon while the court did not mention this prohibition at the

sentencing hearing. His argument is foreclosed by this court’s

decision in United States v. Torres-Aguilar, 352 F.3d 934, 937-38

(5th Cir. 2003). The judgment of the district court is AFFIRMED.