United States v. Pozos-Santillan

* 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this opinion should not be published and is not precedent except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
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40174
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENIGNO POZOS-SANTILLAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-1463-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Benigno Pozos-Santillan appeals his guilty-plea conviction
for illegal reentry into the United States following a prior
deportation in violation of 8 U.S.C. § 1326. For the first time
on appeal, Pozos-Santillan argues that the sentencing provisions
of 8 U.S.C. § 1326(b) are unconstitutional in light of the
Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466
(2000).

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No. 04-40174
-2-
Pozos-Santillan acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review. Apprendi did not overrule Almendarez-
Torres. See Apprendi, 530 U.S. at 489-90; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Pozos-Santillan’s
argument is foreclosed. The judgment of the district court is
AFFIRMED.

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