United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41569
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL VILLANUEVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-914-01
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Manuel Villanueva appeals from his conviction of
transporting illegal aliens. He contends that the district court
erred by adjusting his offense level based on his intentionally
or recklessly creating a substantial risk of death or serious
bodily injury, pursuant to U.S.S.G. § 2L1.1(b)(5). Villanueva
seeks leave to file a supplemental brief in which he contends
that the adjustment violated Blakely v. Washington, 124 S. Ct.
2531 (2004), because it was based on facts that were not charged
in his indictment, were not found by a jury beyond a reasonable
*
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this opinion should not be published and is not precedent except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. 03-41569
-2-
doubt, and were not admitted by him at his plea hearing. The
motion to file it is GRANTED.
The district court’s finding that Villanueva had used heroin
shortly before driving was not clearly erroneous. See United
States v. Humphrey, 104 F.3d 65, 71 (5th Cir. 1997). Villanueva
correctly concedes that his Blakely contention is foreclosed by
United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), petition
for cert. filed (July 14, 2004) (No. 04-5263).
AFFIRMED; MOTION GRANTED