United States v. Mijares-Andrade

* 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this opinion should not be published and is not precedent except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 23, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10964
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO MIJARES-ANDRADE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:04-CR-11-ALL-C
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Juan Antonio
Mijares-Andrade raises an admittedly foreclosed argument pursuant
to Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998)
(holding that a prior conviction is a sentencing factor under
8 U.S.C. § 1326(b)(2) and not a separate criminal offense), as
well as an argument pursuant to Blakely v. Washington, 124 S. Ct.
2531 (2004). In light of the Supreme Court’s ruling in United
States v. Booker, 125 S. Ct. 738 (2005), Mijares-Andrade has

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No. 04-10964
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filed an unopposed motion to abandon his second point-of-error,
which raised a Blakely/Booker error. That motion is GRANTED.
Because the only remaining issue on appeal is foreclosed by
Almendarez-Torres, as Mijares-Andrade concedes, the Government’s
motion for summary affirmance is GRANTED, and the judgment of the
district court is AFFIRMED.

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