United States v. Leija-Martinez , 87 F. App'x 422 ( 2004 )

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. 03-41078
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME LEIJA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-348-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Leija-Martinez (Leija) pleaded guilty to an indictment
charging that he was found in the United States after having been
deported and convicted of an aggravated felony. For the first
time on appeal, he argues that 8 U.S.C. § 1326(b)(1) and (b)(2)
are unconstitutional in light of the Supreme Court's ruling in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Leija concedes
that his argument is foreclosed by Almendarez-Torres, but he
nevertheless seeks to preserve the issue for Supreme Court
*
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that this opinion should not be published and is not precedent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. 03-41078
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review. He also challenges the provision of the written judgment
that prohibits him from possessing a dangerous weapon, arguing
that such provision conflicts with the district court’s oral
sentence. Because both of Leija’s arguments are directly
foreclosed by circuit precedent, we pretermit a determination
whether Leija waived his arguments under the terms of the plea
agreement. The Government’s motion to dismiss the appeal based
on the waiver is DENIED.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000). This court must therefore follow the
precedent set in Almendarez-Torres "unless and until the Supreme
Court itself determines to overrule it." Dabeit, 231 F.3d at 984(internal quotation and citation omitted). Accordingly, Leija's
argument that 8 U.S.C. § 1326(b) is unconstitutional based on the
decision in Apprendi is without merit.
If the district court orally imposes a sentence of
supervised release without stating the conditions applicable to
the supervision period, the written judgment’s inclusion of
conditions that are mandatory, standard, or recommended by
the Sentencing Guidelines does not create a conflict with the
oral pronouncement of sentence. See United States v.
Torres-Aguilar, 352 F.3d 394, 937-38 (5th Cir. 2003).
Possession of any “dangerous weapon” during the term of
supervised release is a “standard” condition; therefore, the
No. 03-41078
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district court’s written judgment does not conflict with the
court’s oral pronouncement of sentence. Id. Leija’s reliance
on unpublished and non-binding authority to the contrary is
unavailing. See 5TH CIR. R. 47.5.4; United States v. Rodriguez-
Montelongo, 263 F.3d 429, 433 & n.3 (5th Cir. 2001).
AFFIRMED. MOTION DENIED.