United States v. Gutierrez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20902 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO ANTONIO GUTIERREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-305-1 -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Pedro Antonia Gutierrez (“Gutierrez”) appeals his conviction

and 57-month sentence following his plea of guilty to illegal

reentry into the United States after deportation, a violation of

8 U.S.C. § 1326. Gutierrez argues that the felony conviction

that resulted in his increased sentence under 8 U.S.C.

§ 1326(b)(2) was an element of the offense that should have been

charged in his indictment.

Gutierrez acknowledges that his first argument is foreclosed

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20902 -2-

he seeks to preserve the issue for Supreme Court review in light

of decision in Apprendi because the Supreme Court indicated in

Apprendi that Almendarez- Torres may have been wrongly decided.

Because the Supreme Court has not overruled Almendarez-Torres,

this court is compelled to follow it. See United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121

S. Ct. 1214 (2001). Gutierrez’s argument is foreclosed. See

Almendarez-Torres, 523 U.S. at 235.

Gutierrez also argues that his indictment was defective

under the Fifth and Sixth Amendments because it did not allege

general intent. Because Gutierrez withdrew this argument in the

district court, review is foreclosed. See United States v.

Reveles, 190 F.3d 678 (5th Cir. 1999); United States v. Olano,

507 U.S. 725 (1993).

Gutierrez’s conviction and sentence are AFFIRMED.