United States v. Varela-Marquez

* 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this opinion should not be published and is not precedent except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. 04-50755
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR MANUEL VARELA-MARQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-247-ALL-KC
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Victor Manuel
Varela-Marquez raises arguments that are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
which held that a prior conviction is a sentencing factor under 8
U.S.C. § 1326(b)(2) and not a separate criminal offense, and by
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),
which held that Blakely v. Washington, 124 S. Ct. 2531 (2004),

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No. 04-50755
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does not apply to the United States Sentencing Guidelines. The
Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.

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