United States v. Ayala-Castanon

* 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that this opinion should not be published and is not precedent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. 03-41138
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO AYALA-CASTANON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-531-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alejandro Ayala-Castanon appeals his conviction and sentence
for attempted illegal entry after deportation. He argues that
the “felony” and “aggravated felony” provisions found at 8 U.S.C.
§ 1326(a) and (b) are unconstitutional sentencing provisions. He
acknowledges that his argument is foreclosed, but he seeks to
preserve the issue for possible Supreme Court review in light of
the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S.
466 (2000). As Ayala-Castanon concedes, this issue is
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. 03-41138
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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).
Ayala-Castanon also argues that there is an error in the
judgment. However, because the district court has corrected this
error, this issue is moot.
AFFIRMED.

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