USA v. Niave-Delgado
Filing
920071025
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit
FILED
No. 06-51405 c/w No. 06-51407 Conference Calendar
October 25, 2007 Charles R. Fulbruge III Clerk
UNITED STATES OF AMERICA Plaintiff-Appellee v. JESUS NIAVE-DELGADO Defendant-Appellant
Appeals from the United States District Court for the Western District of Texas USDC No. 2:06-CR-394-ALL USDC No. 2:06-CR-692-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* In this consolidated appeal, Jesus Niave-Delgado (Niave) has appealed the sentence imposed following his conviction of illegal reentry into the United States after deportation and the district court's order revoking his supervised release related to a prior conviction of illegal reentry following deportation. Citing Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), Niave contends that the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*
No. 06-51405 c/w No. 06-51407 three-year supervised release term imposed by the district court for the instant conviction of illegal reentry violated due process because the indictment, which did not allege a prior felony conviction, charged an offense punishable by a maximum supervised release term of one year. Niave concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 23947 (1998). He contends that the holding of Almendarez-Torres has been cast into doubt by the decision in Apprendi. Niave seeks to preserve the issue for possible Supreme Court review. Niave raises no issue with respect to the revocation of his supervised release. "This court has repeatedly rejected arguments like the one made by [Niave] and has held that Almendarez-Torres remains binding despite Apprendi." United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). The Government's motion for summary affirmance is GRANTED and the district court's judgment of conviction and order revoking supervised release are AFFIRMED. The Government's motion for an extension of time within which to file a brief is DENIED as moot.
2
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