United States v. Luviano-Gonzalez

* 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that this opinion should not be published and is not precedent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. 00-40768
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE LUVIANO-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-77-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Luviano-Gonzalez appeals the sentence imposed
following his guilty-plea conviction for re-entering the United
States illegally after deportation in violation of 8 U.S.C.
§ 1326. Luviano-Gonzalez’ appeal stems from the fact that his
sentence was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). He
argues that in view of the Supreme Court's recent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), his
sentence should be vacated because it exceeds the two-year
statutory maximum sentence for a violation of 8 U.S.C. § 1326(a).

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No. 00-40768
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Luviano-Gonzalez also argues that the felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)
was an element of the offense that should have been charged in
his indictment.
Luviano-Gonzalez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), and states that he is raising the issue to preserve
it for possible Supreme Court review. Although the Supreme Court
noted that Almendarez-Torres may have been incorrectly decided,
the Supreme Court did not expressly overrule it in Apprendi.
Apprendi, 120 S. Ct. at 2362 & n.15. Luviano-Gonzalez’ argument
is foreclosed by Almendarez-Torres.
AFFIRMED.

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