United States v. Gutierrez-Tovar , 169 F. App'x 206 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 05-41083
Conference Calendar
UNITED STATES OF AMERCIA,
Plaintiff-Appellee,
versus
ARTURO GUITIERREZ-TOVAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-987-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Arturo Gutierrez-Tovar (Gutierrez) appeals his guilty plea
conviction for illegally reentering the United States after
having been convicted of an aggravated felony and deported. As
Gutierrez acknowledges, his challenge to the district court’s
eight-level sentence enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) is foreclosed by circuit precedent. See United
States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (5th Cir. 1997);
see also United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir.
*
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this opinion should not be published and is not precedent except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. 05-41083
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2001). Gutierrez cites no authority affecting the binding
precedential value of Rivera and Hinojosa-Lopez.
Gutierrez also argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000). Gutierrez’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Gutierrez 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).
Gutierrez 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.
No. 05-41083
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