United States v. Gutierrez-Oliva , 239 F. App'x 79 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-41249
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SELVIN ANTONIO GUTIERREZ-OLIVA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-577-ALL
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Selvin Antonio Gutierrez-Oliva appeals his guilty-plea
conviction of, and sentence for, violating 8 U.S.C. § 1326 by
being found in the United States without permission after
deportation. Gutierrez-Oliva preserves for further review his
contention that his sentence is unreasonable because this court’s
post-Booker** rulings have effectively reinstated the mandatory
Sentencing Guideline regime condemned in Booker. Gutierrez-Oliva
concedes that his argument is foreclosed by United States v.
*
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this opinion should not be published and is not precedent except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.
**
United States v. Booker, 543 U.S. 220 (2005).
No. 06-41249
-2-
Mares, 402 F.3d 511 (5th Cir. 2005), and its progeny, which have
outlined this court’s methodology for reviewing sentences for
reasonableness.
Gutierrez-Oliva further argues, in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), that the 41-month term of
imprisonment imposed in his case exceeds the statutory maximum
sentence allowed for the § 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.
Gutierrez-Oliva’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. 2005). Gutierrez-Oliva 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. The judgment of the district court is AFFIRMED.