USA vs. Ortiz-Arellano, (5th Cir. 2004)

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United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

February 18, 2004

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 03-41042

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL ORTIZ-ARELLANO,

Defendant-Appellant.

* * * * * *

Consolidated with

No. 03-41114

* * * * * *

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL ORTIZ-ARELLANO,

also known as Jose Ramos-Ochoa,

also known as Antonio Aguilar-Ochoa,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. B-03-CR-153-ALL

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:* No. 03-41042 c/w No. 03-41114 Victor Manuel Ortiz-Arellano contends for the first time on appeal that the aggravated felony enhancement found in 8 U.S.C. § 1326(b) is unconstitutional under Apprendi v. New Jersey,530 U.S. 466, 490 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States,523 U.S. 224 (1998), but asserts that Almendarez-Torres has been called into doubt by Apprendi v. New Jersey,530 U.S. 466 (2000). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). He seeks to preserve the issue for possible Supreme Court review. The judgment of conviction is AFFIRMED and the district court's judgment for revocation of supervised release is also AFFIRMED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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