United States v. Gonzalez-Lopez

176 F. App'x 515

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 12, 2006

Charles R. Fulbruge III Clerk No. 05-40757 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN GONZALEZ-LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1907-ALL --------------------

Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

Juan Gonzalez-Lopez (Gonzalez) pleaded guilty to count 1 of

an indictment charging him with entering the United States

illegally following deportation. Gonzalez was sentenced to a 45-

month term of imprisonment and to a three-year period of

supervised release. Gonzalez gave timely notice of his appeal.

Gonzalez challenges the constitutionality of 8 U.S.C.

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40757 -2-

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Gonzalez’s argument is foreclosed

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

in which the Supreme Court held that treatment of prior

convictions as sentencing factors in § 1326(b)(1) and (2) was

constitutional. Although Gonzalez contends that a majority of

the Supreme Court would now consider Almendarez-Torres to be

incorrectly decided in light of Apprendi, “[t]his court has

repeatedly rejected arguments like the one made by [Gonzalez] and

has held that Almendarez-Torres remains binding despite

Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th

Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez concedes as

much, but he raises the argument to preserve it for further

review.

AFFIRMED.