United States v. Alanis-Gonzales

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. 04-40532
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO ALANIS-GONZALES, also known as Juan Antonio
Robledo-Pesina,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-983-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

Sergio Alanis-Gonzales appeals from his conviction of

illegal reentry following deportation after conviction of an

aggravated felony. Alanis contends for the first time on appeal

that his sentence is constitutionally infirm because

Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been

cast into doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000),

and should be overruled. He also contends that if Almendarez-

*
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that this opinion should not be published and is not precedent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. 04-40532
-2-

Torres were overruled, Blakely v. Washington, 124 S. Ct. 2531

(2004), would apply in determining his sentence. Alanis raises

these issues only to preserve them for further review, and he

concedes that this court’s review is under the plain-error

standard.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). We must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotation marks and citation

omitted). Further, Blakely does not apply to the federal

sentencing guidelines. See United States v. Piniero, 377 F.3d

464, 473 (5th Cir.), petition for cert. filed (U.S. July 14,

2004)(No. 04-5263). Alanis has failed to show error, plain or

otherwise, regarding the applicability of Almendarez-Torres or

Blakely.

AFFIRMED.