United States v. Gonzalez-Lopez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 12, 2006 Charles R. Fulbruge III Clerk No. 05-40757 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN GONZALEZ-LOPEZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-1907-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Juan Gonzalez-Lopez (Gonzalez) pleaded guilty to count 1 of an indictment charging him with entering the United States illegally following deportation. Gonzalez was sentenced to a 45- month term of imprisonment and to a three-year period of supervised release. Gonzalez gave timely notice of his appeal.

Gonzalez challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the

No. 05-40757 -2- offense that must be found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Gonzalez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), in which the Supreme Court held that treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was constitutional. Although Gonzalez contends that a majority of the Supreme Court would now consider Almendarez-Torres to be incorrectly decided in light of Apprendi, “[t]his court has repeatedly rejected arguments like the one made by [Gonzalez] and has held that Almendarez-Torres remains binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez concedes as much, but he raises the argument to preserve it for further review.

AFFIRMED.