United States v. Duran-Gomez , 115 F. App'x 743 ( 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. 04-40601
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO DURAN-GOMEZ, also known as Sergio Duran,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-94-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Sergio Duran-Gomez entered a guilty plea to one count of
being found illegally in the United States following deportation
and a prior conviction for a drug-trafficking offense. He
appeals his conviction and his sentence of forty-six months of
imprisonment and three years of supervised release.
For the first time on appeal, Duran-Gomez contends that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466*
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this opinion should not be published and is not precedent except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. 04-40601
-2-
(2000). Duran-Gomez acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90; United States v. Mancia-Perez, 331 F.3d 464, 470
(5th Cir.), cert. denied, 540 U.S. 935 (2003).
Additionally, as Duran-Gomez concedes, his argument that his
sentence was imposed in violation of Blakely v. Washington, 124
S. Ct. 2531 (2004), is foreclosed by circuit precedent. 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). The judgment
of the district court is AFFIRMED.