United States v. Cisneros-Cavazos

115 F. App'x 256

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. 04-40530 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR ALFREDO CISNEROS-CAVAZOS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 1:03-CR-973-ALL --------------------

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

PER CURIAM:*

Cesar Alfredo Cisneros-Cavazos pleaded guilty to being an

alien unlawfully found in the United States after deportation,

having previously been convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b). The district court

sentenced him to serve 56 months of imprisonment and three years

of supervised release.

For the first time on appeal, Cisneros-Cavazos argues that

the “felony” and “aggravated felony” provisions set forth in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40530 -2-

8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000), because they do not require

the fact of a prior felony or aggravated felony conviction to be

charged in the indictment and proved beyond a reasonable doubt.

As Cisneros-Cavazos concedes, his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 234-35 (1998).

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

Cisneros-Cavazos also argues for the first time on appeal

that if Almendarez-Torres is overruled, the Supreme Court’s

holding in Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004),

renders unconstitutional the district court’s calculation of his

sentence under the United States Sentencing Guidelines based on

facts relating to his prior convictions that were neither found

by a jury beyond a reasonable doubt nor admitted by him.

Cisneros-Cavazos concedes that in addition to the obstacle posed

by Almendarez-Torres, his argument regarding the effect of

Blakely is foreclosed by 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), in which this court held that Blakely does

not extend to the United States Sentencing Guidelines.

AFFIRMED.