United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40530
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR ALFREDO CISNEROS-CAVAZOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-973-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Cesar Alfredo Cisneros-Cavazos pleaded guilty to being an
alien unlawfully found in the United States after deportation,
having previously been convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b). The district court
sentenced him to serve 56 months of imprisonment and three years
of supervised release.
For the first time on appeal, Cisneros-Cavazos argues that
the “felony” and “aggravated felony” provisions set forth in
*
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this opinion should not be published and is not precedent except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. 04-40530
-2-
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), because they do not require
the fact of a prior felony or aggravated felony conviction to be
charged in the indictment and proved beyond a reasonable doubt.
As Cisneros-Cavazos concedes, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 234-35 (1998).
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Cisneros-Cavazos also argues for the first time on appeal
that if Almendarez-Torres is overruled, the Supreme Court’s
holding in Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004),
renders unconstitutional the district court’s calculation of his
sentence under the United States Sentencing Guidelines based on
facts relating to his prior convictions that were neither found
by a jury beyond a reasonable doubt nor admitted by him.
Cisneros-Cavazos concedes that in addition to the obstacle posed
by Almendarez-Torres, his argument regarding the effect of
Blakely is foreclosed by United States v. Pineiro, 377 F.3d 464,
465-66 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 04-5263), in which this court held that Blakely does
not extend to the United States Sentencing Guidelines.
AFFIRMED.