Conference Calendar UNITED STATES OF AMERICA v. Jesus Niave-Delgado

* 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should not be published and is not precedent except under the limited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. 06-51405
c/w No. 06-51407
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESUS NIAVE-DELGADO
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-394-ALL
USDC No. 2:06-CR-692-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
In this consolidated appeal, Jesus Niave-Delgado (Niave) has appealed the
sentence imposed following his conviction of illegal reentry into the United
States after deportation and the district court’s order revoking his supervised
release related to a prior conviction of illegal reentry following deportation.
Citing Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), Niave contends that the
United States Court of Appeals
Fifth Circuit
F I L E D
October 25, 2007
Charles R. Fulbruge III
Clerk

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No. 06-51405
c/w No. 06-51407
2
three-year supervised release term imposed by the district court for the instant
conviction of illegal reentry violated due process because the indictment, which
did not allege a prior felony conviction, charged an offense punishable by a
maximum supervised release term of one year. Niave concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235,
239–47 (1998). He contends that the holding of Almendarez-Torres has been cast
into doubt by the decision in Apprendi. Niave seeks to preserve the issue for
possible Supreme Court review. Niave raises no issue with respect to the
revocation of his supervised release.
“This court has repeatedly rejected arguments like the one made by
[Niave] and has held that Almendarez-Torres remains binding despite
Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). The
Government’s motion for summary affirmance is GRANTED and the district
court’s judgment of conviction and order revoking supervised release are
AFFIRMED. The Government’s motion for an extension of time within which
to file a brief is DENIED as moot.

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