United States v. Withron-Alvarez

* 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this opinion should not be published and is not precedent except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. 03-41384
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OCTAVIO WITHRON-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-682-1
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Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Octavio Withron-Alvarez appeals his sentence imposed
following his guilty plea conviction for illegal reentry into the
United States following deportation. Withron-Alvarez contends
that the sentencing enhancements in 8 U.S.C. § 1326(b) are
unconstitutional and that he should be resentenced for the lesser
included offense contained in 8 U.S.C. § 1326(a). Withron-
Alvarez acknowledges that his arguments are foreclosed under
Almendarez-Torres v. United States, 523 U.S. 224 (1998).

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No. 03-41384
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However, he contends that if Almendarez-Torres is overruled, his
sentence should be reconsidered in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004).
Apprendi v. New Jersey, 530 U.S. 466 (2000) 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).
Withron-Alvarez has not demonstrated that Blakely v. Washington,
124 S. Ct. 2531 (2004) is applicable to cases arising under
Almendarez-Torres. The sentence imposed is AFFIRMED.

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