United States v. Gonzalez-Gutierrez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III
Clerk
No. 05-40375
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GONZALEZ-GUTIERREZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-693-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Jose Gonzalez-Gutierrez appeals his illegal reentry

conviction. Gonzalez’s constitutional challenge to 8 U.S.C.

§ 1326(b) is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998). Although Gonzalez contends that

Almendarez-Torres was incorrectly decided and that a majority of

the Supreme Court would overrule Almendarez-Torres in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly

rejected such arguments on the basis that Almendarez-Torres

*
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this opinion should not be published and is not precedent except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. 05-40375
-2-

remains binding. See United States v. Garza-Lopez, 410 F.3d 268,

276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez

properly concedes that his argument is foreclosed in light of

Almendarez-Torres and circuit precedent, but he raises it here to

preserve it for further review.

AFFIRMED.