United States v. Albarenga-Villalobo

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 17, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20399
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO ALBARENGA-VILLALOBO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-467-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Alfredo Albarenga-Villalobo (Albarenga) appeals from his
sentence imposed on a guilty-plea conviction for illegal
re-entry. The district court imposed a 58-month term of
imprisonment, followed by a three-year term of supervised
release.
For the first time on appeal, Albarenga contends that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)

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No. 04-20399
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are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). As Albarenga concedes, this issue is 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).
Albarenga 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 United States Sentencing
Guidelines. As Albarenga also concedes, this argument is
foreclosed by our opinion in United States v. Pineiro, 377 F.3d
464, 465-66 (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.

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