United States v. Almanza-Tapia

95 F. App'x 661

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41376 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SEVERIANO ALMANZA-TAPIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-03-CR-395-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Severiano Almanza-Tapia pleaded guilty to a charge of being

present illegally in the United States subsequent to deportation

and a conviction for an aggravated felony, a violation of

8 U.S.C. § 1326. The district court sentenced him to sixty-three

months of imprisonment and three years of supervised release.

Almanza-Tapia contends that the felony and aggravated felony

provisions of 8 U.S.C. § 1326(b) are unconstitutional. He

acknowledges that his argument is foreclosed by Almendarez-Torres

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41376 -2-

v. United States, 523 U.S. 224, 235 (1998), but he asserts that

Almendarez-Torres has been cast into doubt by Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his

argument for further review.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000). We must follow Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Dabeit, 231 F.3d at 984 (internal quotation marks and citation

omitted). Accordingly, the judgment of the district court is

AFFIRMED.