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this opinion should not be published and is not precedent except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

November 19, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-21010

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS EDUARDO MATA-RAMIREZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4-03-CR-226-ALL 

--------------------

Before REAVLEY, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Carlos Eduardo Mata-Ramirez (Mata-Ramirez) appeals his

conviction and sentence for illegal reentry into the United

States after deportation. He argues that the condition of

supervised release prohibiting him from possessing “any other

dangerous weapon” must be vacated because it is impermissibly

vague and overbroad. 

We interpret Mata-Ramirez’s “overbreadth” argument to mean

that the “any other dangerous weapon” condition violates the
No. 03-21010

-2-

requirement that a condition of supervised release involve “no

greater deprivation of liberty than is reasonably necessary . . .

to afford adequate deterrence to criminal conduct” and “to

protect the public from further crimes of the defendant.” See

United States v. Paul, 274 F.3d 155, 165 n.12 (5th Cir. 2001); 18

U.S.C. § 3583(d)(2); 18 U.S.C. § 3553(a)(2)(B) & (C). MataRamirez was convicted of illegal reentry after deportation and

while on supervised release is prohibited from committing both

federal and state crimes. See 18 U.S.C. § 3583(d). Under these

circumstances, the “any other dangerous weapon” condition is not

overbroad because it does not involve a greater deprivation of

liberty than is necessary to afford adequate deterrence of

criminal conduct and to protect the public form further crimes by

him. See 18 U.S.C. § 3583(d)(2); 18 U.S.C. § 3553(a)(2)(B) 

& (C).

As to Mata-Ramirez’s vagueness challenge, this court has

held that “[c]onditions of probation ‘may afford fair warning

even if they are not precise to the point of pedantry. In short,

conditions of probation can be written -- and must be read -- in

a commonsense way.’” See Paul, 274 F.3d at 167 (citation

omitted; emphasis added). When the definition of a “dangerous

weapon” is read in the requisite commonsense manner, this

definition reflects that intent to cause harm is required in

order to characterize as a dangerous weapon an instrument which
No. 03-21010

-3-

is not dangerous when used in its customary manner. Id.; see

also U.S.S.G. § 1B1.1, comment. (n.1(d)) (2002).

Mata-Ramirez also argues that the “felony” and “aggravated

felony” provisions of 21 U.S.C. § 1326(b)(1) and (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Mata-Ramirez raises an issue that he concedes is

foreclosed, but he seeks to preserve it for further review. 

This argument is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998). We must follow the precedent

in Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000) (internal quotation and citation

omitted).

Accordingly, Mata-Ramirez’s conviction and sentence are

AFFIRMED.