United States v. Maldonado

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 22, 2005

Charles R. Fulbruge III Clerk No. 04-20869 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ERNESTO MALDONADO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-275-ALL --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Carlos Ernesto Maldonado pleaded guilty to illegal reentry

after deportation following conviction of an aggravated felony

and was sentenced to 69 months of imprisonment, three years of

supervised release, and a $100 special assessment.

Maldonado argues for the first time on appeal that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2) are

unconstitutional on their face in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Maldonado acknowledges that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20869 -2-

argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998), but he seeks to preserve the issue for

Supreme Court review. As Maldonado concedes, this issue is

foreclosed. See Apprendi, 530 U.S. at 489-90; United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.