United States v. Martin-Gomez

* 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this opinion should not be published and is not precedent except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. 05-40818
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE DE JESUS MARTIN-GOMEZ, also known as Jose Gomez-Martin,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-26-ALL
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Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Jose De Jesus Martin-Gomez appeals his sentence under
8 U.S.C. § 1326(a) and (b) for illegal reentry into the United
States after having been deported following conviction for an
aggravated felony. Martin-Gomez asserts that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional.
Martin-Gomez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

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No. 05-40818
-2-
Although Martin-Gomez 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). Martin-Gomez 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.
Given the above disposition, we do not decide whether
Martin-Gomez’s appeal is barred by the waiver provision of his
plea agreement.
The judgment of the district court is AFFIRMED.

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