United States v. Lopez-Gutierrez

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40859
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO LOPEZ-GUTIERREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-296-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Mauricio Lopez-Gutierrez appeals his sentence for illegal
reentry by a previously deported alien in violation of 8 U.S.C.
§ 1326(b)(2). He argues that in view of Apprendi v. New Jersey,
120 S. Ct. 2348, 2362-63 (2000), his prior felony conviction was
an element of the offense under § 1326(b)(2) and not merely a
sentence enhancement. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
247 (1998), but states that he is preserving it for possible
Supreme Court review because the Supreme Court indicated in

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No. 00-40859
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Apprendi that Almendarez-Torres may have been wrongly decided.
Because the Supreme Court has not overruled Almendarez-Torres,
this court is compelled to follow it. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S.
Ct. 1214 (2001). Because Lopez-Gutierrez’s argument is
foreclosed by Almendarez-Torres, the judgment is AFFIRMED.

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