United States v. Guitierrez-Tovar

169 F. App'x 214

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 23, 2006
• Docket: No. 05-41083
• Status: Published

Opinion

PER CURIAM:

*

Arturo Gutierrez-Tovar (Gutierrez) appeals his guilty plea conviction for illegally reentering the United States after having been convicted of an aggravated felony and deported. As Gutierrez acknowledges, his challenge to the district court’s eight-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(C) is foreclosed by circuit precedent. See United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir.1997); see also United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.2001). Gutierrez cites no authority affecting the binding precedential value of Rivera and Hinojosa-Lopez.

Gutierrez also argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Gutierrez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Gutierrez 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, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Gutierrez 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.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.