United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-20151
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN CARRILLO-BANUELOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-236-ALL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Agustin Carrillo-Banuelos pleaded guilty to unlawful reentry
of a deported alien in violation of § 1326(a) and (b)(2), and was
sentenced to 70 months of imprisonment to be followed by three
years of supervised release. The district court imposed the
condition of supervised release that Carrillo-Banuelos “shall not
possess a firearm, destructive device, or any other dangerous
weapon.” Carrillo-Banuelos argues that this condition must be
vacated because it is vague and overbroad.
*
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this opinion should not be published and is not precedent except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. 04-20151
-2-
Conditions of probation must be written and read in a
“commonsense way.” United States v. Paul, 274 F.3d 155, 167 (5th
Cir. 2001). A commonsense reading of the condition requires that
the intent to cause harm be present before an instrument which is
not dangerous when used in its customary manner may be found to
be a dangerous weapon. Carrillo-Banuelos has not shown that the
district court erred by imposing the condition.
For the first time on appeal, Carrillo-Banuelos argues,
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), that the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are elements of the offense, not sentence
enhancements, making those provisions unconstitutional. He
concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but raises it for possible
review by the Supreme Court.
Carrillo-Banuelos also argues that his sentence violates
Blakely v. Washington, 124 S. Ct. 2531 (2004), because it is
based on facts not admitted or found by a jury. As he concedes,
this argument is foreclosed by United States v. Pineiro, 377 F.3d
464, 465-66 (5th Cir.), petition for cert. filed, (July 14, 2004)
(No. 04-5263).
AFFIRMED.