United States v. Cuellar

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-50146
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SILVESTRE CUELLAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-1087-1-KC
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Relying on Blakely v. Washington, 124 S. Ct. 2531 (2004),
Silvestre Cuellar argues that the district court erred by
imposing a sentence based on facts that were neither admitted nor
found by a jury beyond reasonable doubt. The Government has
moved for summary affirmance in lieu of filing an appellee’s
brief because the issue is foreclosed in this circuit under
United States v. Pineiro, No. 03-30437, 2004 WL 1543170, at *1
(5th Cir. July 12, 2004). The issue is indeed foreclosed. The
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2004
Charles R. Fulbruge III
Clerk

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No. 04-50146
-2-
Government’s motion is GRANTED, and the judgment of the district
court is AFFIRMED.

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