United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-40923
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JESUS ALBERTO HERNANDEZ-GONZALEZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-204-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit
Judges.
PER CURIAM:*
Jesus Alberto Hernandez-Gonzalez appeals from the sentence
imposed following his guilty-plea conviction for illegal reentry
into the United States following deportation pursuant to an
aggravated-felony conviction. He first argues that the district
court erred in calculating his criminal history score, which
affected his criminal history category. Hernandez admits that
this error is reviewed only for plain error because he failed to
challenge that calculation in district court. When reviewing for
*
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this opinion should not be published and is not precedent except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. 04-40923
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plain error in the sentencing context, “this court has concluded
that if the trial judge, on remand, could reinstate the same
sentence, it will uphold the sentence imposed despite the trial
court’s error.” United States v. Leonard, 157 F.3d 343, 346 (5th
Cir. 1998). Despite Hernandez’ arguments to the contrary,
Leonard is controlling precedent and may not be overruled by this
panel without en banc consideration or an intervening Supreme
Court opinion. See Hogue v. Johnson, 131 F.3d 466, 491 (5th Cir.
1997). Hernandez admits that, even if his criminal history score
were corrected, the district court could impose the same 70-month
sentence on remand. Accordingly, Hernandez has not shown plain
error. See id.
Also for the first time on appeal, Herandez argues that
8 U.S.C. § 1326(b) is unconstitutional on its face and as applied
in his case because it does not require the fact of a prior
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. He thus
contends that his sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a).
Hernandez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
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
No. 04-40923
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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.
AFFIRMED.