United States v. Zelaya-Vasquez

115 F. App'x 252

Opinion

PER CURIAM: *

Julio Cesar Vasquez-Alejos appeals his guilty-plea conviction and sentence for being found unlawfully present in the United States after deportation, following an aggravated felony, pursuant to 8 U.S.C. § 1326(a) and (b). Vasquez-Alejos argues, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the offense, not sentence enhancements, making those provisions unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219,140 L.Ed.2d 350 (1998), but he raises it for possible review by the Supreme Court. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Vasquez-Alejos asserts that if Almendarez-Torres is overturned and the decision in Blakely v. Washington, — U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), is held to apply to federal sentencing guidelines, then his sentence could not be based on facts not admitted by him or found by a jury. This argument is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir.2004), petition for cert. filed (U.S. July 14, 2004)(No. 04-5263).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.