United States v. Ayala-Castanon

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41138 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO AYALA-CASTANON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-531-ALL --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Alejandro Ayala-Castanon appeals his conviction and sentence

for attempted illegal entry after deportation. He argues that

the “felony” and “aggravated felony” provisions found at 8 U.S.C.

§ 1326(a) and (b) are unconstitutional sentencing provisions. He

acknowledges that his argument is foreclosed, but he seeks to

preserve the issue for possible Supreme Court review in light of

the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.

466 (2000). As Ayala-Castanon concedes, this issue is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41138 -2-

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).

Ayala-Castanon also argues that there is an error in the

judgment. However, because the district court has corrected this

error, this issue is moot.

AFFIRMED.