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. 04-40731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ENRIQUE BERNAL-ISLER,
also known as Jose Enrique Bernal,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1051-1
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Martin Enrique Bernal-Isler (Bernal) appeals from his
sentence imposed on a guilty-plea conviction for illegal
re-entry. The district court imposed a 77-month term of
imprisonment followed by a two-year term of supervised release.
For the first time on appeal, Bernal contends that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). As Bernal concedes, this issue is foreclosed.
*
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this opinion should not be published and is not precedent except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. 04-40731
-2-
See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Bernal further argues that the Supreme Court’s holding in
Blakely v. Washington, 124 S. Ct. 2531 (2004), should be applied
to sentences determined under the federal sentencing guidelines.
As Bernal also concedes, this argument is foreclosed by our
opinion in United States v. Pineiro, 377 F.3d 464, 473 (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. Accordingly, the sentence of the district court is
AFFIRMED.