United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-21010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS EDUARDO MATA-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4-03-CR-226-ALL
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Before REAVLEY, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Carlos Eduardo Mata-Ramirez (Mata-Ramirez) appeals his
conviction and sentence for illegal reentry into the United
States after deportation. He argues that the condition of
supervised release prohibiting him from possessing “any other
dangerous weapon” must be vacated because it is impermissibly
vague and overbroad.
We interpret Mata-Ramirez’s “overbreadth” argument to mean
that the “any other dangerous weapon” condition violates the
*
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this opinion should not be published and is not precedent except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. 03-21010
-2-
requirement that a condition of supervised release involve “no
greater deprivation of liberty than is reasonably necessary . . .
to afford adequate deterrence to criminal conduct” and “to
protect the public from further crimes of the defendant.” See
United States v. Paul, 274 F.3d 155, 165 n.12 (5th Cir. 2001); 18
U.S.C. § 3583(d)(2); 18 U.S.C. § 3553(a)(2)(B) & (C). Mata-
Ramirez was convicted of illegal reentry after deportation and
while on supervised release is prohibited from committing both
federal and state crimes. See 18 U.S.C. § 3583(d). Under these
circumstances, the “any other dangerous weapon” condition is not
overbroad because it does not involve a greater deprivation of
liberty than is necessary to afford adequate deterrence of
criminal conduct and to protect the public form further crimes by
him. See 18 U.S.C. § 3583(d)(2); 18 U.S.C. § 3553(a)(2)(B)
& (C).
As to Mata-Ramirez’s vagueness challenge, this court has
held that “[c]onditions of probation ‘may afford fair warning
even if they are not precise to the point of pedantry. In short,
conditions of probation can be written -- and must be read -- in
a commonsense way.’” See Paul, 274 F.3d at 167 (citation
omitted; emphasis added). When the definition of a “dangerous
weapon” is read in the requisite commonsense manner, this
definition reflects that intent to cause harm is required in
order to characterize as a dangerous weapon an instrument which
No. 03-21010
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is not dangerous when used in its customary manner. Id.; see
also U.S.S.G. § 1B1.1, comment. (n.1(d)) (2002).
Mata-Ramirez also argues that the “felony” and “aggravated
felony” provisions of 21 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Mata-Ramirez raises an issue that he concedes is
foreclosed, but he seeks to preserve it for further review.
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). We must follow the precedent
in Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000) (internal quotation and citation
omitted).
Accordingly, Mata-Ramirez’s conviction and sentence are
AFFIRMED.