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. 04-40558
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO LOPEZ-CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-44-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Humberto Lopez-Cruz (“Lopez”) pleaded guilty to illegally
re-entering the United States after having been deported and
after having been convicted of an “aggravated felony,” a
violation of 8 U.S.C. § 1326(a) and (b). The district court
sentenced him to 66 months in prison and to three years of
supervised release.
For the first time on appeal, Lopez argues that 8 U.S.C.
§ 1326(b) is unconstitutional under Apprendi v. New Jersey, 530
*
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this opinion should not be published and is not precedent except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. 04-40558
-2-
U.S. 466 (2000), because it does 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 Lopez
concedes, this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and Almendarez-Torres was not
overruled by Apprendi. See United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
Lopez also argues that the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied
to sentences determined under the United States Sentencing
Guidelines. He concedes that this argument is foreclosed by this
court’s recent opinion in United States v. Pineiro, 377 F.3d 464,
465 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 04-5263), but he raises it to preserve it for possible
further review.
AFFIRMED.