United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-51284
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL GONZALEZ-RUIZ, also known as Manuel Gonzalez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:05-CR-381-ALL
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Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Victor Manuel Gonzalez-Ruiz (Gonzalez) appeals his guilty-
plea conviction and sentence for being unlawfully present in the
United States after deportation without consent of the Attorney
General or the Secretary of Homeland Security. He argues that
the district court erred in enhancing his sentence based on his
Texas prior conviction for kidnaping under U.S.S.G. § 2L1.2.
Because he did not raise this issue in the district court, his
claim is reviewed for plain error. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
*
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this opinion should not be published and is not precedent except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. 05-51284
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Gonzalez has not shown that the district court’s increase in
his offense level based on his prior Texas kidnaping conviction
pursuant to § 2L1.2 was a “clear or obvious” error. See United
States v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir.),
cert. denied, 126 S. Ct. 253 (2005); Calverley, 37 F.3d at 162-
64.
Gonzalez argues that his sentence at the bottom of the
applicable advisory sentencing guideline range is unreasonable
under 18 U.S.C. § 3553(a) because it is excessive in relation to
the seriousness of his offense. Gonzalez’s disagreement with the
Sentencing Commission’s assessment of the seriousness of his
offense does not establish that his sentence was unreasonable.
Gonzalez argues, in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 46-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence
allowed for the 8 U.S.C. § 1326(a) offense charged in his
indictment. He challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
be found by a jury.
Gonzalez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he contends that Almendarez-Torres was incorrectly
decided and that a majority of the Supreme Court would overrule
Almendarez-Torres in light of Apprendi, we have repeatedly
No. 05-51284
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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). 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.