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. 04-40612
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VLADIMIR HERNANDEZ-GONZALEZ,
also known as Domecio Infante,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-1000-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Vladimir Hernandez-Gonzalez appeals his guilty-plea
conviction of being an alien unlawfully present in the United
States after having been deported and having been previously
convicted of an aggravated felony. Hernandez-Gonzalez argues for
the first time on appeal that the viability of Almendarez-Torres
v. United States, 523 U.S. 224 (1998), is in doubt given the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). He also argues that if Almendarez-Torres were overruled
*
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this opinion should not be published and is not precedent except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. 04-40612
-2-
and Blakely v. Washington, 124 S. Ct. 2531 (2004), were held to
apply to the federal Sentencing Guidelines, Hernandez-Gonzalez’s
sentence could not be enhanced by his prior convictions unless
those convictions were found beyond a reasonable doubt or
Hernandez-Gonzalez admitted to them.
As Hernadez-Gonzalez concedes, Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). As
Hernandez-Gonzalez also concedes, his Blakely argument is
foreclosed. See 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). The district court’s judgment is AFFIRMED.