United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-41660
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
VICTOR MANUEL GOMEZ-YANEZ
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-571-ALL
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Victor Manuel Gomez-Yanez appeals from his guilty plea
conviction and 37-month sentence for being an alien found
unlawfully in the United States after deportation and following a
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326. Gomez-Yanez argues that his sentence is contrary to
United States v. Booker, 543 U.S. 220 (2005) and unreasonable as
a matter of law. He contends that this court’s post-Booker
decisions have effectively reinstated the mandatory guideline
scheme condemned by Booker.
*
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this opinion should not be published and is not precedent except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. 06-41660
-2-
Gomez-Yanez concedes that his argument that his sentence is
contrary to Booker is foreclosed by United States v. Mares, 402
F.3d 511 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005), and its
progeny, which have outlined this court’s methodology for
reviewing sentences for reasonableness. Gomez-Yanez raises this
specifically to preserve it for further review.
Gomez-Yanez also raises constitutional challenges to
§ 1326(b), which are foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). Although Gomez-Yanez 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 remains binding. See United States v. Garza-Lopez, 410
F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
Gomez-Yanez 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.
The judgment of the district court is AFFIRMED.