United States v. Garcia

* 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this opinion should not be published and is not precedent except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 THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41349
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-260-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Domingo Garcia appeals the sentence imposed following his
guilty-plea conviction for being an alien unlawfully found in the
United States following deportation after having been previously
convicted of an aggravated felony, in violation of 8 U.S.C.
§ 1326. For the first time on appeal, Garcia argues that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Garcia acknowledges that his argument is foreclosed by
United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-41349
-2-
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90. Accordingly, the judgment of the district
court is AFFIRMED.

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