United States v. Arvizu-Garcia

* 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this opinion should not be published and is not precedent except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. 04-40868
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO ALBERTO ARVIZU-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-194-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Hugo Alberto Arvizu-Garcia appeals the sentence imposed
following his illegal reentry conviction. He argues for the
first time on appeal 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
Blakely v. Washington, 124 S. Ct. 2531 (2004). He concedes that
the issue is foreclosed but seeks its preservation for possible
Supreme Court review.

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No. 04-40868
-2-
Arvizu’s arguments are not precluded by the terms of his
appeal waiver; nevertheless, 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.), 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.

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