United States v. Gonzalez-Cruz ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-41744
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GONZALEZ-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-579-ALL
--------------------
Before KING, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Carlos Gonzalez-Cruz appeals from his guilty-plea conviction
and sentence for attempting to enter the United States without
consent after having been deported, in violation of
8 U.S.C. § 1326. Gonzalez-Cruz argues that the district court
erred by imposing a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based upon his Texas conviction for burglary
of a habitation. As Gonzalez-Cruz concedes, his argument is
foreclosed. See United States v. Valdez-Maltos, 443 F.3d 910,
911 (5th Cir.), cert. denied, 127 S. Ct. 265 (2006); United
*
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this opinion should not be published and is not precedent except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. 05-41744
-2-
States v. Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005),
cert. denied, 126 S. Ct. 1398 (2006).
Gonzalez-Cruz also challenges, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must
be found by a jury.
Gonzalez-Cruz’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although he 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-
Cruz 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.