United States v. Bernal-Isler

115 F. App'x 736

Opinion

PER CURIAM:

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Martin Enrique Bernal-Isler (Bernal) appeals from his sentence imposed on a guilty-plea conviction for illegal re-entry. The district court imposed a 77-month term of imprisonment followed by a two-year term of supervised release.

For the first time on appeal, Bernal contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1826(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Bernal concedes, this issue is foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Bernal further argues that the Supreme Court’s holding in Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), should be applied to sentences determined under the federal sentencing guidelines. As Bernal also concedes, this argument is foreclosed by our opinion in United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004) (No. 04r-5263), but he raises it to preserve it for possible further review. Accordingly, the sentence of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.