United States v. Gamez-Ortiz ( 2006 )

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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-2339-ALL
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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
*
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this opinion should not be published and is not precedent except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.
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.