United States v. Hamilton-Reyes

* 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this opinion should not be published and is not precedent except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 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20608
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS HUMBERTO HAMILTON-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-78-ALL
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Carlos Humberto Hamilton-Reyes was convicted on his guilty
plea of illegal reentry into the United States, for which he
was sentenced to serve 94 months in prison and a three-year
term of supervised release. He contends that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)
are unconstitutional in light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). He asserts further

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No. 04-20608
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that he would be entitled to relief under Blakely v. Washington,
124 S. Ct. 2531 (2004), if Almendarez-Torres v. United States,
523 U.S. 224 (1998), were overruled.
Hamilton-Reyes’s argument concerning the constitutionality
of 8 U.S.C. § 1326(b) is, as he concedes, foreclosed. See
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
Since Almendarez-Torres has not been overruled, Hamilton-Reyes is
not entitled to relief under Blakely. See Dabeit, 231 F.2d at
984.
AFFIRMED.

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