USA v. Gonzalez, No. 05-50645 (5th Cir. 2007)
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 17, 2007 Charles R. Fulbruge III Clerk No. 05-50645 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANUEL GONZALEZ, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-2600-ALL -------------------Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* Manuel Gonzalez appeals his conviction and sentence following his guilty plea to illegal reentry into the United States following deportation. He argues for the first time on appeal that the district court erred in enhancing his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior robbery conviction under TEX. PENAL CODE ANN. § 29.02(a)(1) (Vernon 1994). Robbery is expressly listed as a crime of violence in the commentary to § 2L1.2. See § 2L1.2, comment.(n.1(b)(iii)). We recently held in United States v. Santiesteban-Hernandez, * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-50645 -2469 F.3d 376, 378-82 (5th Cir. 2006), that the Texas offense of robbery under § 29.02 qualifies as the enumerated offense of robbery for purposes of § 2L1.2. Gonzalez s arguments are almost identical to the arguments made in Santiesteban-Hernandez and therefore provide no basis for relief. Gonzalez also argues in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), that the 96-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the 8 U.S.C. § 1326(a) offense charged in his indictment. He 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. Gonzalez s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he contends 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 AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Gonzalez 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.
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