United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 25, 2006
Charles R. Fulbruge III
Clerk
No. 06-40180
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GOMEZ-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-748-ALL
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Luis Gomez-Perez (Gomez) appeals his guilty-plea conviction
and sentence for being an alien found unlawfully in the United
States after deportation and after having been convicted of an
aggravated felony. Gomez argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)
are unconstitutional.
Gomez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gomez contends that Almendarez-Torres was incorrectly
*
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this opinion should not be published and is not precedent except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. 06-40180
-2-
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 remains binding. See United States
v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied,
126 S. Ct. 298 (2005). Gomez 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.