United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 18, 2006
Charles R. Fulbruge III
Clerk
No. 05-40261
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD WALTER,
Defendant-Appellant.
(Consolidated with)
No. 05-40263
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD DOLLAN WATLER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-591-ALL
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No. 05-40261
c/w No. 05-40263
-2-
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
In 2000, Richard Dollan Watler (Walter)** was convicted of
possessing with the intent to distribute cocaine, in violation of
21 U.S.C. § 841(b)(1)(C), and was sentenced to 18 months in
prison and three years of supervised release. In October 2004,
Walter pleaded guilty to illegal reentry. The court sentenced
Walter to 57 months in prison, three years of supervised release,
and a $100 special assessment. The court also found that Walter
had violated the terms of his supervised release in his drug case
and sentenced him on revocation thereof to the maximum sentence
available, 24 months in prison, to run consecutively to the 57-
month sentence that was imposed for his illegal reentry
conviction.
Walter argues, relying on United States v. Booker, 543 U.S.
220 (2005), Blakely v. Washington, 542 U.S. 296 (2004), and
Apprendi v. New Jersey, 530 U.S. 466 (2000), that his sentence
upon revocation of supervised release exceeds the statutory
maximum sentence permitted by 18 U.S.C. § 3583. He challenges
the court’s classification of his original offense, which in turn
*
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this opinion should not be published and is not precedent except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.
**
In case No. 05-40263, the defendant appealed under the
name Richard Dollan Watler. In case No. 05-40261, he appealed
under the name Richard Walter. The defendant avers that his
correct name is Walter, not Watler.
No. 05-40261
c/w No. 05-40263
-3-
defines the maximum sentence that can be imposed upon revocation
of supervised release. Walter argues that the maximum term of
imprisonment authorized under 18 U.S.C. § 3559(a) refers to the
maximum sentence authorized under the Sentencing Guidelines, not
the maximum sentence authorized by the underlying statute of
conviction.
The maximum term of imprisonment under the statute of
conviction determines the classification of a defendant’s
offense. United States v. Alfaro-Hernandez, 453 F.3d 280, 282
(5th Cir. 2006). Walter’s sentence on supervised release does
not exceed the statutory maximum sentence under § 3583.
Walter also argues that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b) are unconstitutional. His
challenge is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998). Although Walter contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
The judgment of the district court is AFFIRMED.