United States v. Gaona-Tovar , 110 F. App'x 438 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-40118
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL MARTIN GAONA-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1309-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Angel Martin Gaona-Tovar appeals his conviction and sentence
following his guilty plea conviction for attempted illegal
reentry into the United States subsequent to deportation
following a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326. Gaona-Tovar argues that the district court
erred by enhancing his base offense level sixteen levels pursuant
to U.S.S.G. § 2L1.2(b)(1)(A)(vii), based on a determination that
his prior conviction for transporting an unlawful alien was an
*
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this opinion should not be published and is not precedent except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. 04-40118
-2-
alien smuggling offense. As Gaona-Tovar concedes, his argument
is foreclosed by United States v. Solis-Campozano, 312 F.3d 164,
167-68 (5th Cir. 2002), cert. denied, 538 U.S. 991 (2003).
For the first time on appeal, Gaona-Tovar argues that
8 U.S.C. § 1326(b) is unconstitutional on its face and as applied
in his case because it does not require the fact of a prior
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. Gaona-Tovar
acknowledges that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
wishes to preserve the issues for Supreme Court review in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Thus, we must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” Dabeit, 231
F.3d at 984 (internal quotation marks and citation omitted).
Accordingly, Gaona-Tovar’s arguments are foreclosed, and his
conviction and sentence are AFFIRMED. We REMAND to the district
court for correction of the judgment pursuant to FED. R. CRIM. P.
36 to reflect that Gaona-Tovar was convicted of a violation of 8
U.S.C. § 1326 for attempted illegal reentry, not illegal reentry,
into the United States after deportation.