United States v. Gonzalez-Arzola

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-41146
• Status: Unpublished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 April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41146 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE FRANCISCO GONZALEZ-ARZOLA, also known as Jose Francisco Gonzalez, also known as Jose Angel Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-460-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Jose Francisco Gonzalez-Arzola appeals his guilty-plea

conviction for illegal reentry into the United States following a

nonaggravated felony conviction in violation of 8 U.S.C. § 1326.

Gonzalez argues that the sentencing provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000). Gonzalez acknowledges that his

argument is foreclosed by Almendarez-Torres v. United States, 523

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41146 -2-

U.S. 224 (1998), but he seeks to preserve the issue for Supreme

Court 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). Accordingly, the judgment of the

district court is affirmed.