United States v. Duran-Gomez

115 F. App'x 743

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 17, 2004
• Docket: 04-40601
• Status: Unpublished

Opinion

PER CURIAM: *

Sergio Duran-Gomez entered a guilty plea to one count of being found illegally in the United States following deportation and a prior conviction for a drag-trafficking offense. He appeals his conviction and his sentence of forty-six months of imprisonment and three years of supervised release.

For the first time on appeal, Duran-Gomez contends that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Duran-Gomez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied, 540 U.S. 935, 124 S.Ct. 358, 157 L.Ed.2d 245 (2003).

Additionally, as Duran-Gomez concedes, his argument that his sentence was imposed in violation of Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is foreclosed by circuit precedent. 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). The judgment 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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.