United States v. Yanez-Brillano

88 F. App'x 758

Opinion

PER CURIAM:

*

Santiago Yanez-Brillano appeals his guilty plea conviction and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326.

Yanez argues 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). Yanez concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Apprendi did not overrule Almendarez-Torres. See Apprendi 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Yanez also argues that the supervised release condition barring his possession of “any other dangerous weapon” must be stricken from the written judgment because it conflicts with the sentence as orally pronounced by the district court. The Sentencing Guidelines recommend that all defendants who have been convicted of a felony be prohibited from possessing any dangerous weapon during the term of supervised release. U.S.S.G. § 5D1.3(d)(l). “If the district court orally imposes a sentence without stating the conditions applicable to this period of supervision, the judgment’s inclusion of conditions that are mandatory, standard, or recommended by the Sentencing Guidelines does not create a conflict with the oral pronouncement.” United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir.2003).

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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.