United States v. Perez-Tostado

* 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that this opinion should not be published and is not precedent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. 04-40686
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS PEREZ-TOSTADO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-894-ALL
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Perez-Tostado appeals his guilty-plea conviction and
sentence for illegal reentry following deportation in violation
of 8 U.S.C. § 1326.
For the first time on appeal, Perez-Tostado contends that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b) are unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000). He also contends that Blakely v.
Washington, 124 S. Ct. 2531 (2004), applies in determining his

-- 1 of 2 --

No. 04-40686
-2-
sentence. Perez-Tostado acknowledges that his arguments are
foreclosed, but he seeks to preserve the issues for possible
Supreme Court review.
Perez-Tostado’s arguments are not precluded by the terms of
the appellate-waiver provision. Nevertheless, as Perez-Tostado
concedes, his arguments are foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v.
Pineiro, 377 F.3d 464, 473 (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).
AFFIRMED.

-- 2 of 2 --