United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2005
Charles R. Fulbruge III
Clerk
No. 04-41122
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES GILBERTO GARZA-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-79-ALL
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Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Andres Gilberto Garza-Lopez (Garza) appeals his guilty plea
conviction and sentence for unlawfully attempting to enter the
United States following deportation and removal and after having
been convicted of an aggravated felony, without having obtained
the consent of the Attorney General or the Secretary of the
Department of Homeland Security. Garza received a 16-level
sentence enhancement due to his prior conviction for attempt to
commit murder. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). He was
*
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this opinion should not be published and is not precedent except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. 04-41122
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sentenced to 46 months of imprisonment and three years of
supervised release. Garza argues, for the first time on appeal,
that Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), should be overruled, and that Blakely v. Washington, 124
S. Ct. 2531 (2004), should be held to apply to the Federal
Sentencing Guidelines.
Because Garza raises these issues for the first time on
appeal, we review only for plain error. See United States v.
Mares, __ F.3d __, No. 03-21035, 2005 WL 503715 at *7 (5th Cir.
Mar. 4, 2005), petition for cert. filed, No. 04-9517 (U.S. Mar.
31, 2005). Although the decision in Almendarez-Torres has been
called into question, see Shepard v. United States, 125 S. Ct.
1254, 1264 (2005) (Thomas, J., concurring), the Supreme Court has
not overruled it. Accordingly, Garza’s argument is foreclosed.
See United States v. Rivera, 265 F.3d 310, 312
(5th Cir. 2001).
Garza contends that if Almendarez-Torres is overruled and
Blakely is held to apply to the Federal Sentencing Guidelines, he
may not be sentenced based on any prior convictions to which he
does not admit or that are not found by a jury beyond a
reasonable doubt. Thus, Garza challenges only the fact of his
prior convictions. In United States v. Booker, 125 S. Ct. 738,
764 (2005), the Supreme Court did apply Blakely to the Federal
Sentencing Guidelines. However, because Almendarez-Torres has
not been overruled, Garza received zero criminal history points
No. 04-41122
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due to the age of his prior convictions, and Garza is not
challenging the characterization of his prior conviction for
attempt to commit murder as a violent felony, he has not
established error, plain or otherwise, with respect to his
conviction and sentence.
AFFIRMED.