United States v. Gonzalez-Clemente

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 20, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10880
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES GONZALEZ-CLEMENTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-28-P-ALL
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Andres Gonzalez-Clemente appeals his conviction and sentence
for illegal reentry of an aggravated felon after deportation, in
violation of 8 U.S.C. § 1326. His argument that the district
court erred in determining his criminal history category is
without merit. The court’s finding that Gonzalez had been
convicted of the assault charge in ¶ 40 of the presentence report
is supported by the record and is not clearly erroneous. See

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No. 03-10880
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United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002);
United States v. Fitzgerald, 89 F.3d 218, 223 (5th Cir. 1996).
Equally unavailing is Gonzalez’s argument that
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998) has
been overruled or cast into doubt by Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), an argument he admits is foreclosed.
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000). This court must follow Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
Dabeit, 231 F.3d at 984 (internal quotation marks and citation
omitted).
AFFIRMED.

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