United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 05-50645
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-2600-ALL
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Manuel Gonzalez appeals his conviction and sentence
following his guilty plea to illegal reentry into the United
States following deportation. He argues for the first time on
appeal that the district court erred in enhancing his sentence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior robbery
conviction under TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 1994).
Robbery is expressly listed as a crime of violence in the
commentary to § 2L1.2. See § 2L1.2, comment.(n.1(b)(iii)).
We recently held in United States v. Santiesteban-Hernandez,
*
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this opinion should not be published and is not precedent except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. 05-50645
-2-
469 F.3d 376, 378-82 (5th Cir. 2006), that the Texas offense of
robbery under § 29.02 qualifies as the enumerated offense of
robbery for purposes of § 2L1.2. Gonzalez’s arguments are almost
identical to the arguments made in Santiesteban-Hernandez and
therefore provide no basis for relief.
Gonzalez also argues in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), that the 96-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 a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi, 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).
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.