United States v. Vasquez-Hernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-41093
• Status: Unpublished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. 03-41093 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ALBERTO VASQUEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-376-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Carlos Alberto Vasquez-Hernandez (Vasquez) appeals his

guilty plea conviction for illegal reentry into the United States

following deportation and after having been convicted of an

aggravated felony in violation of 8 U.S.C. § 1326. For the first

time on appeal, Vasquez argues that the sentencing provisions of

8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in the light of

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

acknowledges that his argument is foreclosed by Almendarez-Torres

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41093 -2-

v. United States, 523 U.S. 224, 235 (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.

Accordingly, the judgment of the district court is AFFIRMED.