United States v. Cuellar

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-50146 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SILVESTRE CUELLAR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-03-CR-1087-1-KC --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004),

Silvestre Cuellar argues that the district court erred by

imposing a sentence based on facts that were neither admitted nor

found by a jury beyond reasonable doubt. The Government has

moved for summary affirmance in lieu of filing an appellee’s

brief because the issue is foreclosed in this circuit under

United States v. Pineiro, No. 03-30437, 2004 WL 1543170, at *1

(5th Cir. July 12, 2004). The issue is indeed foreclosed. The

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50146 -2-

Government’s motion is GRANTED, and the judgment of the district

court is AFFIRMED.