United States v. Torres-Perez

* 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that this opinion should not be published and is not precedent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. 03-40433
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER TORRES-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1531-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Javier Torres-Perez appeals his guilty-plea conviction for
illegal reentry subsequent to deportation after a conviction for
an aggravated felony, in violation of 8 U.S.C. § 1326. He argues
that the “aggravated felony” enhancement found in 8 U.S.C.
§ 1326(b)(2) is unconstitutional in view of Apprendi v. New
Jersey, 530 U.S. 466 (2000). He acknowledges that this argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but states that he is raising it to preserve it for

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No. 03-40433
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possible Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This
argument is foreclosed.
Torres-Perez argues that the supervised release condition
which prohibits him from possessing dangerous weapons conflicts
with the district court’s oral pronouncement of the sentence and
must be deleted. The Sentencing Guidelines recommend that all
defendants who have been convicted of a felony be prohibited from
possessing any dangerous weapon during the term of supervised
release. U.S.S.G. § 5D1.3(d)(1). “If the district court orally
imposes a sentence without stating the conditions applicable to
this period of supervision, the judgment’s inclusion of
conditions that are mandatory, standard, or recommended by the
Sentencing Guidelines does not create a conflict with the oral
pronouncement.” United States v. Torres-Aguilar, 352 F.3d 934,
935-38 (5th Cir. 2003).
AFFIRMED.

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