United States v. Caseres-Rodriguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-41167
• Status: Unpublished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 April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41167 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISRAEL CASERES-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-440-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Israel Caseres-Rodriguez appeals his guilty plea conviction

for illegal reentry into the United States following an

aggravated felony conviction in violation of 8 U.S.C. § 1326.

For the first time on appeal, Caseres argues that the sentencing

provisions of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Caseres

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41167 -2-

the issue for Supreme Court review. Apprendi did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United

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

Accordingly, the judgment of the district court is AFFIRMED.