United States v. Mendoza-Sifuentes

115 F. App'x 251

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 17, 2004
• Docket: 04-40363
• Status: Unpublished

Opinion

PER CURIAM: *

Jose Mendoza-Sifuentes (Mendoza) appeals his guilty-plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326.

For the first time on appeal, Mendoza contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He also contends that Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), applies in determining his sentence. Mendoza acknowledges that his arguments are foreclosed, but he seeks to preserve the issues for possible Supreme Court review. The Government contends that Mendoza’s appeal is barred by the appeal-waiver provision in his plea agreement.

Mendoza’s arguments are not precluded by the terms of the appellate-waiver provision. Nevertheless, as Mendoza concedes, his arguments are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); United States v. Pineiro, 377 F.3d 464, 473 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004) (No. 04-5263); United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.