United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 02-41613
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN GONZALEZ-ALANIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-863-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Benjamin Gonzalez-Alanis (“Gonzalez”) appeals the sentence
imposed following his conviction for illegal reentry into the
United States after commission of an aggravated felony. He
argues that 8 U.S.C. § 1326(b)(2), which was used to enhance his
sentence based on his prior aggravated felony conviction, is
unconstitutional.
Gonzalez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (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that this opinion should not be published and is not precedent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. 02-41613
-2-
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his
argument for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
Gonzalez further argues that a conflict exists between the
district court’s oral pronouncement of sentence and the written
judgment because the written judgment contains a condition of
supervised release prohibiting the possession of a dangerous
weapon while the court did not mention this prohibition at the
sentencing hearing. His argument is foreclosed by this court’s
decision in United States v. Torres-Aguilar, 352 F.3d 934, 937-38
(5th Cir. 2003). The judgment of the district court is AFFIRMED.