United States v. Gutierrez-Chavez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 29, 2008
No. 07-50965
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MIGUEL ANGEL GUTIERREZ-CHAVEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-213-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Miguel Angel Gutierrez-Chavez appeals his sentence following his guilty
plea conviction for illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326. The district court enhanced Gutierrez-Chavez’s sentence by eight levels
based on a determination that his second state law conviction for possession of
marijuana qualified as an “aggravated felony.”
*
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should not be published and is not precedent except under the limited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. 07-50965
Gutierrez-Chavez contends that in light of the Supreme Court’s decision
in Lopez v. Gonzales, 549 U.S. 47 (2006), his second state law conviction does not
qualify as an aggravated felony. In United States v. Cepeda-Rios, 530 F.3d 333,
335-36 (5th Cir. 2008), we rejected the same arguments made by Gutierrez-
Chavez in this appeal. For the reasons set forth in Cepeda-Rios, we also affirm
Gutierrez-Chavez’s sentence.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Gutierrez-Chavez
challenges 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. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
AFFIRMED.