United States v. Gonzalez-Vela

176 F. App'x 443

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 11, 2006

Charles R. Fulbruge III Clerk No. 05-40622 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEOBARDO GONZALEZ-VELA, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-1119 --------------------

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

PER CURIAM:*

Leobardo Gonzalez-Vela appeals his guilty-plea conviction

for unlawful reentry in violation of 8 U.S.C. § 1326(b). In his

sole issue on appeal, Gonzalez-Vela argues that § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than as elements of the offense that

must be found by a jury is unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000). Because the Government has

not invoked the waiver provisions in the plea agreement, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40622 -2-

waiver does not bind Gonzalez-Vela. See United States v. Story,

439 F.3d 226, 230-31 (5th Cir. 2006).

Gonzalez-Vela’s constitutional challenge to § 1326(b) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Gonzalez-Vela contends that Almendarez-

Torres was incorrectly decided and that a majority of the Supreme

Court would overrule Almendarez-Torres in light of Apprendi, we

have repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding. See United States v. Garza-

Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298

(2005). Gonzalez-Vela properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

AFFIRMED.