United States v. Nieves-Alvarez , 115 F. App'x 746 ( 2004 )

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. 04-40805
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE NIEVES-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-103-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Guadalupe Nieves-Alvarez ("Nieves") pleaded guilty to the
offense of being unlawfully found in the United States after
deportation subsequent to an aggravated felony, in violation of
8 U.S.C. § 1326(a) and (b). The district court sentenced him to
46 months in prison and three years of supervised release.
For the first time on appeal, Nieves argues that the
"felony" and "aggravated felony" provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
*
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this opinion should not be published and is not precedent except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. 04-40805
-2-
New Jersey, 530 U.S. 466 (2000). He concedes that his argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998). He also asserts that if Almendarez-Torres is overruled
and Blakely v. Washington, 124 S. Ct. 2531 (2004), is held to
apply to the federal sentencing guidelines, then the calculation
of his sentence would be unconstitutional. Nieves's arguments
are, as he concedes, foreclosed. See Almendarez-Torres, 523 U.S.
at 235, 239-47; 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); United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). Nieves's conviction and sentence are AFFIRMED.