United States v. Gonzalez-Vela ( 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 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-40622
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEOBARDO GONZALEZ-VELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1119
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Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Leobardo Gonzalez-Vela appeals his guilty-plea conviction
for unlawful reentry in violation of 8 U.S.C. § 1326(b). In his
sole issue on appeal, Gonzalez-Vela argues that § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than as elements of the offense that
must be found by a jury is unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000). Because the Government has
not invoked the waiver provisions in the plea agreement, the
*
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this opinion should not be published and is not precedent except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. 05-40622
-2-
waiver does not bind Gonzalez-Vela. See United States v. Story,
439 F.3d 226, 230-31 (5th Cir. 2006).
Gonzalez-Vela’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Gonzalez-Vela contends that Almendarez-
Torres was incorrectly decided and that a majority of the Supreme
Court 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). Gonzalez-Vela properly concedes that his argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
AFFIRMED.