United States v. San Martin

* 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that this opinion should not be published and is not precedent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. 04-40608
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO SAN MARTIN, also known as,
Ricardo Hernandez-Lozano,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-683-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Arturo San Martin appeals his guilty-plea conviction and
sentence for illegal reentry after deportation. He argues that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), and that his sentence is
improper under Blakely v. Washington, 124 S. Ct. 2531 (2004).
These arguments are, as he concedes, foreclosed. See
Almendarez-Torres v. United States, 523 U.S. 224 (1998); United

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No. 04-40608
-2-
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition
for cert. filed (U.S. July 14, 2004) (No. 04-5263); United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). San Martin’s
conviction and sentence are AFFIRMED.

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