United States v. Gonzalez-Gonzalez , 235 F. App'x 345 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-41283
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN GONZALEZ-GONZALEZ, true name Juan Alberto Cabrera-Gonzalez
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2520-ALL
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Gonzalez-Gonzalez (Gonzalez) appeals his guilty-plea conviction and
46-month sentence for unlawful reentry following deportation, in violation of 8
U.S.C. § 1326. Gonzalez argues that his sentence is contrary to United States
v. Booker, 543 U.S. 220 (2005), and unreasonable as a matter of law. He
contends that this court’s post-Booker decisions have effectively reinstated the
mandatory guideline scheme condemned by Booker.
*
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should not be published and is not precedent except under the limited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. 06-41283
Gonzalez concedes that this argument is foreclosed by circuit precedent,
but he raises it to preserve it in light of the Supreme Court’s grant of certiorari
in Rita v. United States, 127 S. Ct. 551 (2006), and Claiborne v. United States,
127 S. Ct. 551 (2006). However, Rita now has been decided, and the Supreme
Court has affirmed that a “court of appeals may apply a presumption of
reasonableness to a district court sentence that reflects a proper application of
the Sentencing Guidelines.” Rita v. United States, 127 S. Ct. 2456, 2462-69
(2007)(quote at 2462). Furthermore, the Supreme Court has vacated the
underlying Claiborne decision as moot due to the death of the petitioner.
Claiborne v. United States, 127 S. Ct. 2245 (2007), vacating as moot 439 F.3d 479(8th Cir. 2006). In light of these decisions, Gonzalez’s argument remains
foreclosed.
Gonzalez also argues that § 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 is unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). Although Gonzalez 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); see also Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006); United
States v. Pineda-Arrellano, 2007 U.S. App. LEXIS 16925 (5th Cir. July 17, 2007).
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.
The judgment of the district court is AFFIRMED.
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