United States v. Angulo

83 F. App'x 622

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 10, 2003
• Docket: 03-40668
• Status: Unpublished

Opinion

PER CURIAM: *

Carlos Angulo appeals the sentence imposed following entry of his guilty plea to a charge of being found in the United States after deportation in violation of 8 U.S.C. § 1326. Angulo argues that the sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional. The Government’s motion to dismiss is DENIED.

Angulo acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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). This court 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). The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.