United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 10, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10279
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
HUMBERTO GONZALES-GONZALES,
also known as Roberto Soto Flores,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-194-ALL-P
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Huberto Gonzales-Gonzales (“Gonzales”) entered a guilty plea
to a violation of 8 U.S.C. § 1326 for being found in the United
States subsequent to deportation and without having obtained
permission to re-enter. The district court sentenced Gonzales to
sixty-four months of imprisonment and three years of supervised
release.
*
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this opinion should not be published and is not precedent except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.
The sole issue raised in adversarial fashion is whether
Gonzales’s prior conviction that resulted in his increased sentence
under 8 U.S.C. § 1326(b) was an element of the offense that had to
be alleged in the indictment. Gonzales acknowledges that his
argument is foreclosed by Almendarez-Torres,1 but he seeks to
preserve the issue for Supreme Court review in light of the Court’s
more recent Apprendi decision.2 Apprendi did not overrule
Almendarez-Torres.3 Accordingly, the judgment of the district
court is AFFIRMED. The Government’s motion for summary affirmance
is GRANTED. The Government’s motion to dismiss the appeal and
motion for an extension of time to file a brief are DENIED as moot.
1
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
2
Apprendi v. New Jersey, 530 U.S. 466 (2000).
3
See id. at 489-90; United States v. Mancia-Perez, 331 F.3d
464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).
2