United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41641
c/w 03-41644
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN SANCHEZ-GARCIA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC Nos. B-03-CR-581 & B-03-CR-793-ALL
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Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Ruben Sanchez-Garcia appeals his guilty-plea conviction and
sentence for violating 8 U.S.C. § 1326(a) and (b) by being found
in the United States, without permission, following his
conviction of an aggravated felony and subsequent deportation.
Sanchez-Garcia also appeals the sentence imposed following
revocation of a supervised release term he was serving in
connection with a prior conviction of violating 8 U.S.C. § 1326.
*
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that this opinion should not be published and is not precedent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. 03-41641 c/w 03-41644
-2-
For the first time on appeal, Sanchez-Garcia argues that the
sentencing provisions in 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Sanchez-Garcia acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but raises the issue to preserve it 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).
Also for the first time on appeal, Sanchez-Garcia contends
that the sentence imposed for his most recent violation of
8 U.S.C. § 1326 is illegally ambiguous because the district court
failed to pronounce at sentencing a specific term of supervised
release. The ambiguity in Sanchez-Garcia’s sentence was resolved
by the district court’s written judgment, which indicated that
Sanchez-Garcia was sentenced to a three-year term of supervised
release. See United States v. Warden, 291 F.3d 363, 365 (5th
Cir. 2002).
AFFIRMED.