IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50137
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO RODRIGUEZ, also known as
Juan Anthony Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CR-48-ALL
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September 27, 2001
Before JOLLY, JONES and SMITH, Circuit Judges.
PER CURIAM:*
Juan Antonio Rodriguez appeals from his guilty-plea
conviction and sentence for armed robbery, 18 U.S.C. § 2113, and
using and carrying a firearm during a crime of violence, 18
U.S.C. § 924(c)(1)(A). Rodriguez argues that 18 U.S.C.
§ 924(c)(1)(A)(iii), which prohibits discharging a firearm in
furtherance of a crime of violence, states an element of a
separate, aggravated criminal offense and that it was
unconstitutional to apply the 10-year mandatory minimum sentence
*
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that this opinion should not be published and is not precedent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. 01-50137
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under 18 U.S.C. § 924(c)(1)(A)(iii), when the indictment failed
to allege as an element of the offense that Rodriguez discharged
the firearm.
We have reviewed the record and the briefs of the parties,
and we discern no reversible error. Rodriguez’s arguments are
foreclosed by the Supreme Court’s decision in McMillan v.
Pennsylvania, 477 U.S. 79, 81 (1986), and by this court’s recent
decision in United States v. Barton, 257 F.3d 433 (5th Cir.
2001). Accordingly, his conviction and sentence are AFFIRMED.