United States v. Milan-Garduno , 85 F. App'x 1000 ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 January 28, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-40184
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JAVIER MILAN-GARDUNO,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. L-02-CR-1050-ALL
    --------------------
    Before SMITH, DeMOSS, and STEWART, Circuit Judges.
    PER CURIAM:*
    Javier Milan-Garduno (“Milan”) pleaded guilty to reentering
    the United States without the consent of the Attorney General,
    after having been deported or removed and after having been
    convicted of an “aggravated felony,” a violation of 8 U.S.C.
    § 1326.   Milan was sentenced to 80 months in prison and three
    years of supervised release.   He now appeals his conviction and
    sentence.
    *
    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    that this opinion should not be published and is not precedent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. 03-40184
    -2-
    Garcia argues that the district court erred in attributing
    to him criminal history points for a 1990 Texas conviction of
    burglary of a building, 1993 Georgia convictions of possession of
    cocaine and possession of cocaine with intent to distribute, and
    a 1993 Georgia conviction of theft by receiving.    He maintains
    that the Presentence Report (“PSR”) information offered in
    support of these convictions lacked sufficient indicia of
    reliability and that he presented “competent rebuttal evidence”
    to contradict that information.    The prior convictions challenged
    by Milan were in fact supported by sufficient indicia of
    reliability, especially after the Probation Office stated that it
    had matched Milan’s aliases, date of birth, and FBI number to
    such convictions.     See United States v. Fitzgerald, 
    89 F.3d 218
    ,
    223 (5th Cir. 1996); U.S.S.G. § 6A1.3, p.s.    Because a review of
    Milan’s sentencing transcript reflects that he did not present
    rebuttal evidence, he has not demonstrated that the PSR
    information was “‘materially untrue, inaccurate, or unreliable.’”
    See United States v. Floyd, 
    343 F.3d 363
    , 372 (5th Cir. 2003)
    (citation omitted).
    The district court’s written judgment contained a
    supervised-release condition prohibiting Milan from possessing
    “any . . . dangerous weapon,” whereas at sentencing the court
    merely ordered that he not possess a “firearm” or “destructive
    device.”   Milan contends that the district court’s oral
    pronouncement supersedes the written condition and that the
    No. 03-40184
    -3-
    written condition thus should be stricken.     Milan’s argument is
    precluded by a recent published decision, United States v.
    Torres-Aguilar,      F.3d     (5th Cir. Dec. 3, 2003, No. 03-
    40055), 
    2003 WL 22853762
    at *3.   His assertion that the panel in
    Torres-Aguilar failed to acknowledge a contrary unpublished
    decision is meritless, as unpublished decisions issued or or
    after January 1, 1996, remain non-binding in this circuit.
    See 5TH CIR. R. 47.5.4.
    Milan argues that 8 U.S.C. § 1326(b) is unconstitutional on
    its face under Apprendi v. New Jersey, 
    530 U.S. 466
    (2000), in
    that the aggravated-felony “element” of the offense need not be
    submitted to the factfinder for proof.     As Milan concedes, his
    contention regarding Apprendi is foreclosed by the caselaw of
    this court and by Apprendi itself.   See United States v. Dabeit,
    
    231 F.3d 979
    , 984 (5th Cir. 2000) (noting that the Supreme Court
    in 
    Apprendi, 530 U.S. at 489-90
    , expressly declined to overrule
    the controlling Almendarez-Torres v. United States, 
    523 U.S. 224
    (1998)).   Milan raises this issue to preserve it for review by
    the Supreme Court.
    Milan’s conviction and sentence are AFFIRMED.
    

Document Info

Docket Number: 03-40184

Citation Numbers: 85 F. App'x 1000

Judges: Demoss, Per Curiam, Smith, Stewart

Filed Date: 1/28/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023