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. 03-40900
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR ALEJANDRO GARZA-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-250-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Omar Alejandro Garza-Flores contends for the first time on
appeal that the felony and aggravated felony provisions found in
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that
this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but asserts that Almendarez-Torres
has been called into doubt by Apprendi v. New Jersey, 530 U.S.
466 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th
*
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this opinion should not be published and is not precedent except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. 03-40900
-2-
Cir. 2000). He seeks to preserve the issue for possible Supreme
Court review.
Garza contends also that a condition of supervised release
contained in the written judgment, which prohibits Garza from
possessing a dangerous weapon, conflicts with the district
court’s oral pronouncement of the sentence and must be deleted.
The same contention was advanced in United States v. Torres-
Aguilar, 352 F.3d 934, 935-38 (5th Cir. 2003), and was rejected
by the court. The judgment is
AFFIRMED.