United States v. Albarenga-Villalobo

115 F. App'x 238

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 17, 2004
• Docket: 04-20399
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III Clerk No. 04-20399 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO ALBARENGA-VILLALOBO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-467-ALL --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Alfredo Albarenga-Villalobo (Albarenga) appeals from his

sentence imposed on a guilty-plea conviction for illegal

re-entry. The district court imposed a 58-month term of

imprisonment, followed by a three-year term of supervised

release.

For the first time on appeal, Albarenga contends that the

“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20399 -2-

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). As Albarenga concedes, this issue is foreclosed.

See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

Albarenga further argues that the Supreme Court’s holding in

Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied

to sentences determined under the United States Sentencing

Guidelines. As Albarenga also concedes, this argument is

foreclosed by our opinion in United States v. Pineiro, 377 F.3d

464, 465-66 (5th Cir. 2004), petition for cert. filed (U.S. July

14, 2004) (No. 04-5263), but he raises it to preserve it for

possible further review. Accordingly, the sentence of the

district court is AFFIRMED.