United States v. Gonzalez-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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 14, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40375
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GONZALEZ-GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-693-ALL
--------------------
Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Jose Gonzalez-Gutierrez appeals his illegal reentry
conviction. Gonzalez’s constitutional challenge to 8 U.S.C.
§ 1326(b) is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Gonzalez 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

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No. 05-40375
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remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez
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.
AFFIRMED.

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