United States v. Villa-Gutierrez , 169 F. App'x 185 ( 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. 05-40946
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GAUDENCIO VILLA-GUTIERREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1081-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Gaudencio Villa-Gutierrez pleaded guilty to being found in
the United States after deportation and was sentenced to
30 months of imprisonment and two years of supervised release.
Villa-Gutierrez argues that the district court erred in
treating his prior state conviction for attempted possession of
narcotic drugs as an aggravated felony. He concedes that his
argument is foreclosed by current Fifth Circuit law, citing
United States v. Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001) and
United States v. Hinojosa-Lopez, 130 F.3d 691, 693-94 (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this opinion should not be published and is not precedent except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. 05-40946
-2-
1997). Thus, the district court did not err in applying the
eight-level adjustment to his offense level pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) based on his prior state felony drug conviction.
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
Jerome v. United States, 318 U.S. 101 (1943) does not affect the
binding precedential value of Rivera and Hinojosa-Lopez.
Villa-Gutierrez argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Specifically, he argues that the viability of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), is in doubt in light of
later Supreme Court cases.
Villa-Gutierrez’s constitutional challenge is foreclosed by
Almendarez-Torres. Although Villa-Gutierrez contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 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). Villa-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.