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. 04-40794
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE REYES ESPINOZA-CORTEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-42-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Reyes Espinoza-Cortez appeals his guilty-plea
conviction and sentence for illegal reentry following
deportation. He 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). He argues
that he may not be convicted and sentenced under 8 U.S.C.
§ 1326(b) because the indictment did not allege that he was
deported after a qualifying felony or aggravated felony and that
*
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this opinion should not be published and is not precedent except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. 04-40794
-2-
Blakely v. Washington, 124 S. Ct. 2531 (2004), dictates that his
sentence violates his Sixth Amendment rights. As Espinoza-Cortez
concedes, these arguments are foreclosed. See Almendarez-Torres
v. United States, 523 U.S. 224, 247 (1998); United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000); see also United States
v. Pineiro, 377 F.3d 464, 473 (5th Cir.), petition for cert.
filed (U.S. July 14, 2004) (No. 04-5263).
AFFIRMED.