United States v. Nolasco

United States Court of Appeals
Fifth Circuit
F I L E D
December 1, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41797
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MELVIN AMILCAR URBINA NOLASCO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m B-02-CR-139-1
_________________________
Before SMITH, BARKSDALE, and CLEMENT,
Circuit Judges.
PER CURIAM:*
Melvin Urbina Nolasco claims the district
court erred in sentencing by assigning criminal
history points for his prior uncounseled con-
viction of illegal reentry, because that convic-
tion was obtained in violation of the Sixth
Amendment. We have reviewed the briefs,
pertinent portions of the record, and the ap-
plicable authorities and have heard the argu-
ments of counsel. In the prior proceeding, Ur-
bina Nolasco knowingly and intelligently
waived counsel, so there was no constitutional
violation.
Urbina Nolasco challenges his conviction
* Pursuant to 5TH CIR. R. 47.5, the court has deter-
mined that this opinion should not be published and is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.

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2
on the ground that the “felony” and “aggravat-
ed felony” provisions of 8 U.S.C. § 1326(b)(1)
and (2) are unconstitutional under Apprendi v.
New Jersey, 530 U.S. 466 (2000). Urbina
Nolasco acknowledges that this issue is fore-
closed by binding precedent, and he is raising
it to preserve it for further review.
The judgment of conviction and sentence is
AFFIRMED.

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