United States v. Garcia-Galiano

86 F. App'x 786

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 2004
• Docket: No. 03-40833
• Status: Published

Opinion

PER CURIAM.

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Carlos Garcia-Galiano (Garcia) appeals his guilty-plea conviction for illegal reentry into the United States following a nonaggravated felony conviction 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 (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Garcia 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. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Garcia also challenges a condition of supervised release set forth in the written judgment that prohibits him from possessing “any other dangerous weapon.” Garcia argues that this provision must be deleted from the written judgment because the district court did not mention the condition when it orally pronounced sentence. We find no error in the written judgment. See United States v. Torres-Aguilar, 352 F.3d 934, 935-38 (5th Cir.2003).

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.