United States v. Gomez-Ballesteros ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-50883
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENIGNO GOMEZ-BALLESTEROS, also
known as Pedro Chavez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-462-ALL-DB
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Appealing the Judgment in a Criminal Case, Benigno Gomez-
Ballesteros raises arguments that are foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), which held
that a prior conviction is a sentencing factor under 8 U.S.C.
§ 1326(b)(2) and not a separate criminal offense, and by United
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), petition
for cert. filed (U.S. July 14, 2004) (No. 04-5263), which held
that Blakely v. Washington, 124 S. Ct. 2531 (2004), does not
*
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this opinion should not be published and is not precedent except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. 04-50883
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apply to the United States Sentencing Guidelines. The
Government’s motion for summary affirmance is GRANTED, and the
judgment of the district court is AFFIRMED.