United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41549
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO OCHOA-CORNEJO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-628-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pedro Ochoa-Cornejo (Ochoa) appeals his guilty plea
conviction for illegal reentry into the United States following
an aggravated felony conviction in violation of 8 U.S.C. § 1326.
For the first time on appeal, Ochoa argues that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Ochoa
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review. 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this opinion should not be published and is not precedent except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. 03-41549
-2-
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED.