United States v. Gamez-Ortiz

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. 05-40764 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SILVIA MARIA GAMEZ-ORTIZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 5:04-CR-2339-ALL -------------------- Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:* Silvia Maria Gamez-Ortiz (Gamez) appeals her guilty plea conviction and sentence for attempted illegal reentry after a previous deportation. She 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 (2000). Gamez’s challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Gamez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court No. 05-40764 -2- would overrule Almendarez-Torres in light of Apprendi, 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).

Gamez properly concedes that her argument is foreclosed in light of Almendarez-Torres and circuit precedent, but she raises it here to preserve it for further review.

AFFIRMED.