United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-40733
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUADALUPE MARCO ANTONIO VILLARREAL-FUENTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-118-1
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Guadalupe Marco Antonio Villarreal-Fuentes appeals his
guilty-plea conviction and sentence for violating 8 U.S.C.
§ 1326(a) and (b) by entering the United States, without
permission, following both his conviction for an aggravated
felony and subsequent deportation. Villarreal-Fuentes
acknowledges that his appellate arguments are foreclosed. He
raises the issues to preserve them for possible further review.
*
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that this opinion should not be published and is not precedent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. 03-40733
-2-
Villarreal-Fuentes’s first argument, that 8 U.S.C. § 1326(b)
is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000), is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 239-47 (1998). In Almendarez-Torres, the
Supreme Court held that the enhanced penalties in 8 U.S.C.
§ 1326(b) are sentencing provisions, not elements of separate
offenses. 523 U.S. at 235. The Court held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Apprendi did not overrule Almendarez-Torres. See United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Villarreal-Fuentes’s second argument, that the provision of
the written judgment prohibiting him from possessing “any other
dangerous weapon” should be stricken because it conflicts with
the sentence orally imposed by the district court, is foreclosed
by United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir.
2003). In Torres-Aguilar, this court held that if a “district
court orally imposes a sentence of supervised release 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.” Id. The court
further held that if a defendant has been convicted of a felony,
a prohibition from possessing any “dangerous weapon” is a
standard condition of supervised release.
AFFIRMED.