United States v. Cruz

115 F. App'x 721

Opinion

PER CURIAM:

*

Douglas M. Cruz pleaded guilty to reentering the United States illegally after having been deported and after having been convicted of an “aggravated felony,” a violation of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to a 51-month prison term and to three years of supervised release.

For the first time on appeal, Cruz argues that 8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it does 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 Cruz concedes, this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and Almendarez-Torres was not overruled by Apprendi. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Cruz also 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 United States Sentencing Guidelines. He concedes that this argument is foreclosed by this court’s opinion in United States v. Pineiro, 377 F.3d 464, 465 (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.

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.