United States v. San Martin

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 17, 2004

Charles R. Fulbruge III Clerk No. 04-40608 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO SAN MARTIN, also known as, Ricardo Hernandez-Lozano, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:03-CR-683-ALL --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Arturo San Martin appeals his guilty-plea conviction and

sentence for illegal reentry after deportation. He argues that

the “felony” and “aggravated felony” provisions of 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.

New Jersey, 530 U.S. 466 (2000), and that his sentence is

improper under Blakely v. Washington, 124 S. Ct. 2531 (2004).

These arguments are, as he concedes, foreclosed. See

Almendarez-Torres v. United States, 523 U.S. 224 (1998); United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-40608 -2-

States v. Pineiro, 377 F.3d 464, 465-66 (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). San Martin’s

conviction and sentence are AFFIRMED.