121 F. App'x 557 | 5th Cir. | 2005
Before WIENER, BENAVIDES and STEWART, Circuit Judges. PER CURIAM: [*]
Jesus Roberto Flores-Guzman (Flores-Guzman) appeals his guilty-plea convicti on and sentence for illegal reentry following deportation in violation of 8 U.S.C. § 1326. For the first time on appeal, Flores-Guzman contends that the “felony” and “aggravated fel ony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He also contends that Blakely v. Washington, 124 S. Ct. 2531 (2004), applies in determining his sentence. Flores-Guzman acknowledges that his arguments are foreclosed, but he seeks to preserve the issues for possible Supreme Court review.
As Flores-Guzman concedes, his arguments are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Also for the first time on appeal, Flores-Guzman contends that the district court plainly erred in prohibiting him from “drinking or using any addictive substances” as a special condition of his supervised release. Because the special condition is not reasonably related to the nature of the offense or Flores-Guzman’s characteristics and involves a greater deprivation of liberty than is reasonably necessary to deter criminal conduct, protect the public, and provide Flores-Guzman with necessary treatment, we agree that the district court plainly erred in prohibiting Flores-Guzman from “drinking or using any addictive substances” during his supervised release. See United States v. Ferguson, 369 F.3d 847, 853-54 (5th Cir. 2004). Accordingly, we VACATE the sentence in part and REMAND for the district court to modify the special conditions of Flores-Guzman’s supervised release in a manner consistent with this opinion.
AFFIRMED IN PART. VACATED AND REMANDED IN PART.
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NOTES
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.