United States v. Varela

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-41287
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41287 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO VARELA, also know as John Michael Reyes,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-481-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Ricardo Varela argues for the first time on appeal that the

aggravated felony enhancement found in 8 U.S.C. § 1326(b) is

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). Varela concedes that his argument is foreclosed by

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

asserts that Almendarez-Torres has been called into doubt by

Apprendi and he seeks to preserve the issue for possible Supreme

Court review. We AFFIRM Valera’s conviction and sentence.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41287 -2-

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).

AFFIRMED.