United States v. Yanez-Brillano

87 F. App'x 958

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 18, 2004

Charles R. Fulbruge III Clerk No. 03-40447 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTIAGO YANEZ-BRILLANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1183-ALL --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

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 (2000). Yanez concedes that

his argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224, 235, 239-47 (1998). Apprendi did not overrule

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40447 -2-

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)(1). “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.