United States v. Varela

* 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that this opinion should not be published and is not precedent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
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41287
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO VARELA,
also know as John Michael Reyes,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-481-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Ricardo Varela argues 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). Varela concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
asserts that Almendarez-Torres has been called into doubt by
Apprendi and he seeks to preserve the issue for possible Supreme
Court review. We AFFIRM Valera’s conviction and sentence.

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No. 03-41287
-2-
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.

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