United States v. Avila-Saldana

153 F. App'x 286

Opinion

PER CURIAM:

*

Benito Avila-Saldana appeals his guilty-plea conviction of illegal reentry into the United States after having been deported. Avila-Saldana argues that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been undercut by later Supreme Court opinions, particularly Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Thus, he argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. Avila-Saldana recognizes that relief is foreclosed but states that he wishes to raise the issue for possible further review in the Supreme Court.

Apprendi did not overrule AlmendarezTorres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. We must follow the precedent set in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir. 2003) (quotation marks and citation omitted). Therefore, Avila-Saldana’s argument fails. See id. 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Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.