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. 06-41112
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL GUTIERREZ-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-175
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Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Rafael Gutierrez-Ramirez appeals his guilty-plea conviction
and sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He challenges the
constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than
as elements of the offense that must be found by a jury in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Gutierrez-Ramirez’s constitutional challenge is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
*
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this opinion should not be published and is not precedent except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. 06-41112
-2-
Although Gutierrez-Ramirez 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 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). Gutierrez-Ramirez 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.
Gutierrez-Ramirez also contends that the district court
erred when it characterized his prior state felony conviction for
simple possession of marijuana as an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). We review Gutierrez-
Ramirez’s challenge to the district court’s application of the
Sentencing Guidelines de novo. See United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
In light of the Supreme Court’s recent decision in Lopez v.
Gonzales, 127 S. Ct. 625 (2006), Gutierrez-Ramirez’s argument has
merit. See United States v. Estrada-Mendoza, 475 F.3d 258, 259-
61 (5th Cir. 2007). Accordingly, Gutierrez-Ramirez’s sentence is
vacated, and the case is remanded for resentencing in light of
Lopez.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.