United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-40233
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO GOMEZ-RAMIREZ, also known as Armando Gomez-Rhea,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-490-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Armando Gomez-Ramirez appeals his conviction of attempting
to reenter the United States without authorization following
deportation after conviction of an aggravated felony. He argues,
for the first time on appeal, that 8 U.S.C. § 1326(b) is
unconstitutional because it treats a prior conviction for a
felony or aggravated felony as a sentencing factor and not as an
element of the offense. Gomez-Ramirez’s argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47
*
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that this opinion should not be published and is not precedent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. 03-40233
-2-
(1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000), did
not overrule that decision. See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000). Thus, the district court did not
err in sentencing Gomez-Ramirez under 8 U.S.C. § 1326(b).
AFFIRMED.