United States v. Gomez-Reyes

* 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this opinion should not be published and is not precedent except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 Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-41470
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN GOMEZ-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:05-CR-388-ALL
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Juan Gomez-Reyes (Gomez) pleaded guilty to being found
unlawfully in the United States following deportation and was
sentenced to a 46-month term of imprisonment and to a two-year
period of supervised release. Gomez has appealed his conviction
and sentence and contends that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b) are unconstitutional on their
face and as applied to him. Gomez’s constitutional challenge is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

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No. 05-41470
-2-
235 (1998). Although Gomez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres, 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). Gomez 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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