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. 03-40833
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GARCIA-GALIANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1730-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Carlos Garcia-Galiano (Garcia) appeals his guilty-plea
conviction for illegal reentry into the United States following a
nonaggravated felony conviction in violation of 8 U.S.C. § 1326.
For the first time on appeal, Garcia argues that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Garcia
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
*
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that this opinion should not be published and is not precedent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. 03-40833
-2-
the issue for Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Garcia also challenges a condition of supervised release set
forth in the written judgment that prohibits him from possessing
“any other dangerous weapon.” Garcia argues that this provision
must be deleted from the written judgment because the district
court did not mention the condition when it orally pronounced
sentence. We find no error in the written judgment. See United
States v. Torres-Aguilar, 352 F.3d 934, 935-38 (5th Cir. 2003).
AFFIRMED.