United States v. Gomez-Juarez

* 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that this opinion should not be published and is not precedent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
May 14, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20782
c/w No. 02-40782
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON GOMEZ-JUAREZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-37-ALL
USDC No. L:01-CR-1394-ALL
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Aaron Gomez-Juarez appeals his guilty-plea conviction
for violation of 8 U.S.C. § 1326 for illegal reentry into the
United States after deportation subsequent to an aggravated felony
conviction and the revocation of his supervised release for a prior
illegal reentry conviction based on his recent conviction for
illegal reentry. With respect to both illegal reentry convictions,

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No. 02-20782
c/w No. 02-40782
-2-
Gomez-Juarez argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Gomez-Juarez cannot challenge his first conviction through a
challenge of revocation of his supervised release, and therefore we
need not consider his argument related to that conviction. United
States v. Moody, 277 F.3d 719, 721 (5th Cir. 2001). His challenge
of the constitutionality of his second conviction is timely, as it
is raised on direct appeal. Regardless, Gomez-Juarez acknowledges
that his attack is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), and that he is entitled to no
relief. United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
AFFIRMED.

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