United States v. Garcia

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41349 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DOMINGO GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-260-1 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Domingo Garcia appeals the sentence imposed following his

guilty-plea conviction for being an alien unlawfully found in the

United States following deportation after having been previously

convicted of an aggravated felony, in violation of 8 U.S.C.

§ 1326. For the first time on appeal, Garcia argues 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

(2000). Garcia acknowledges that his argument is foreclosed by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41349 -2-

Almendarez-Torres v. United States, 523 U.S. 224 (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. Accordingly, the judgment of the district

court is AFFIRMED.