United States v. Ortiz-Arellano

* 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this opinion should not be published and is not precedent except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
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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:*

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No. 03-41042 c/w
No. 03-41114
-2-
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.

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