United States v. Nolasco

United States Court of Appeals Fifth Circuit F I L E D In the December 1, 2003 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 02-41797 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS MELVIN AMILCAR URBINA NOLASCO, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Texas m B-02-CR-139-1 _________________________ Before SMITH, BARKSDALE, and CLEMENT, history points for his prior uncounseled con- Circuit Judges. viction of illegal reentry, because that convic- tion was obtained in violation of the Sixth PER CURIAM:* Amendment. We have reviewed the briefs, pertinent portions of the record, and the ap- Melvin Urbina Nolasco claims the district plicable authorities and have heard the argu- court erred in sentencing by assigning criminal ments of counsel. In the prior proceeding, Ur- bina Nolasco knowingly and intelligently waived counsel, so there was no constitutional * Pursuant to 5TH CIR. R. 47.5, the court has deter- violation. mined that this opinion should not be published and is not precedent except under the limited circumstances Urbina Nolasco challenges his conviction set forth in 5TH CIR. R. 47.5.4. on the ground that the “felony” and “aggravat- ed felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Urbina Nolasco acknowledges that this issue is fore- closed by binding precedent, and he is raising it to preserve it for further review. The judgment of conviction and sentence is AFFIRMED. 2