United States v. Gonzalez-Clemente

95 F. App'x 79

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 19, 2004
• Docket: 03-10880
• Status: Unpublished

Opinion

PER CURIAM: *

Andres Gonzalez-Clemente appeals his conviction and sentence for illegal reentry of an aggravated felon after deportation, in violation of 8 U.S.C. § 1326. His argument that the district court erred in determining his criminal history category is without merit. The court’s finding that Gonzalez had been convicted of the assault charge in H 40 of the presentence report is supported by the record and is not clearly erroneous. See United States v. Cabrera, 288 F.3d 163, 168 (5th Cir.2002); United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir.1996).

Equally unavailing is Gonzalez’s argument that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) has been overruled or cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), an argument he admits is foreclosed. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; 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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.