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. 04-10132
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO COVARRUBIAS, also known as Alfredo
Covarrubias-Amaral, also known as Robert Covarrubias,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-229-ALL-A
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Alfredo Covarrubias appeals his sentence for violating
8 U.S.C. § 1326(a) and (b) by illegally reentering the United
States, without permission, following his deportation.
Covarrubias contends for the first time on appeal that he should
not have been assessed a criminal history point for a prior
conviction for shoplifting because that crime is similar to the
crime of writing an insufficient-funds check, which is exempt
from inclusion in the criminal history calculation. See U.S.S.G.
*
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this opinion should not be published and is not precedent except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. 04-10132
-2-
§ 4A1.2(c)(1). Covarrubias fails to provide any binding
authority holding that the two offenses are similar, and he thus
fails to show that the district court made any “clear” or
“obvious” error. See United States v. Hull, 160 F.3d 265, 271-
272 (5th Cir. 1998).
Covarrubias also has filed a letter pursuant to FED. R. APP.
P. 28(j) calling our attention to the Supreme Court’s recent
decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).
However, we have held that Blakely does not apply to the United
States Sentencing Guidelines. United States v. Pineiro, 377 F.3d
464, 473 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 04-5263).
AFFIRMED.