United States v. Patino-De La Torre

108 F. App'x 874

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2004
• Docket: 03-41446
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS August 18, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41446 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL PATINO-DE LA TORRE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1602-1 --------------------

Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.

PER CURIAM:*

Manuel Patino-De La Torre (“Patino”) appeals his guilty plea

conviction and 70-month sentence for illegal reentry into the

United States following an aggravated felony conviction in

violation of 8 U.S.C. § 1326. For the first time on appeal,

Patino argues that the sentencing provisions of 8 U.S.C.

§ 1326(b)(1) & (b)(2) are unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41446 -2-

Patino acknowledges that his 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. Apprendi

did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at

489-90; United States v. Mancia-Perez, 331 F.3d 464, 470 (5th

Cir.), cert. denied, 124 S. Ct. 358 (2003).

AFFIRMED.