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United States v. Gutierrez-Suarez , 115 F. App'x 256 ( 2004 )


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  •                                                        United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                  December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS GUTIERREZ-SUAREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-18-ALL
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Elias Gutierrez-Suarez appeals his guilty-plea conviction
and sentence for being found illegally present in the United
States after deportation pursuant to
    8 U.S.C. § 1326
    (a) and (b).
Gutierrez-Suarez argues, pursuant to Apprendi v. New Jersey,
    530 U.S. 466
     (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
     (1998), and
*
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this opinion should not be published and is not precedent except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. 04-40648
-2-
by prior Fifth Circuit precedent, United States v. Barrera-
Saucedo,
    385 F.3d 533
    , 537 (5th Cir. 2004).   He raises the
argument for possible review by the Supreme Court.
Gutierrez-Suarez also argues that after the Supreme Court’s
decision in Blakely v. Washington,
    124 S. Ct. 2531
     (2004), his
sentence could not be enhanced under the Federal Sentencing
Guidelines on the basis of the fact of his prior conviction
unless that fact was found by a jury beyond a reasonable doubt or
admitted by him.   He concedes that this court’s opinion in United
States v. Pineiro,
    377 F.3d 464
     (5th Cir. 2004), petition for
cert. filed (July 14, 2004) (No. 04-5263 ), forecloses this
issue, and he raises it solely to preserve the issue for further
review.   This court has held that Blakely does not apply to the
Federal Sentencing Guidelines.   Pineiro,
    377 F.3d at 473
    .
AFFIRMED.