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. 04-40696
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN GENE BERRYMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-143-ALL-MAC
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Bryan Gene Berryman pleaded guilty pursuant to a written
plea agreement to receipt of child pornography. He was sentenced
to 57 months of imprisonment, three years of supervised release,
and a $100 special assessment.
Berryman argues for the first time on appeal that the
district court erred in enhancing his sentence based on facts
that were not found by a jury or admitted by Berryman. He
contends that, in light of the Supreme Court’s decision 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this opinion should not be published and is not precedent except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. 04-40696
-2-
Blakely v. Washington, 124 S. Ct. 2531 (2004), such enhancements
violate the Fifth and Sixth Amendments. As Berryman
acknowledges, this issue is foreclosed. See United States v.
Pineiro, 377 F.3d 464, 473 (5th Cir. 2004), petition for cert.
filed (U.S. July 14, 2004) (No. 04-5263).
AFFIRMED.