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. 03-40447
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO YANEZ-BRILLANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1183-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Santiago Yanez-Brillano appeals his guilty plea conviction
and sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326.
Yanez argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Yanez concedes that
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235, 239-47 (1998). Apprendi did not overrule
*
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that this opinion should not be published and is not precedent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. 03-40447
-2-
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Yanez also argues that the supervised release condition
barring his possession of "any other dangerous weapon" must be
stricken from the written judgment because it conflicts with the
sentence as orally pronounced by the district court. The
Sentencing Guidelines recommend that all defendants who have been
convicted of a felony be prohibited from possessing any dangerous
weapon during the term of supervised release. U.S.S.G.
§ 5D1.3(d)(1). “If the district court orally imposes a sentence
without stating the conditions applicable to this period of
supervision, the judgment’s inclusion of conditions that are
mandatory, standard, or recommended by the Sentencing Guidelines
does not create a conflict with the oral pronouncement.” United
States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003).
Therefore, the judgment of the district court is AFFIRMED.