United States v. Vaca-Hernandez

PER CURIAM: ^*

Miguel Vaca-Hernandez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b) by being found in the United States, without permission, following his deportation. The district court sentenced him to serve 84 months of imprisonment and three years of supervised release.

For the first time on appeal, Vaca-Hernandez argues that the “felony” and “aggravated felony” provisions set forth in 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because they do not require the fact of a prior felony or aggravated felony conviction to be charged in the indictment and proved beyond a reasonable doubt. As Vaca-Hernandez concedes, his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

Vaca-Hernandez also argues for the first time on appeal that if AlmendarezTorres is overruled, the Supreme Court’s holding in Blakely v. Washington, — U.S. -, -, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004), renders unconstitutional the district court’s calculation of his sentence under the United States Sentencing Guidelines based on facts relating to his prior conviction that were neither found by a jury beyond a reasonable doubt nor admitted by him. Vaea-Hernandez concedes that in addition to the obstacle posed by Almendarez-Torres, his argument regarding the effect of Blakely 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), in which this court held that Blakely does not extend to the United States Sentencing Guidelines.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.