* 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that this opinion should not be published and is not precedent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

FILED

January 28, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

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. 
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.