United States v. Limas-Hidrogo

101 F. App'x 481

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-21033 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS LAURO LIMAS-HIDROGO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-03-CR-168-1 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Luis Lauro Limas-Hidrogo appeals from his guilty-plea

conviction for being illegally present in the United States after

being previously deported subsequent to an aggravated felony

conviction. For the first time on appeal, Limas-Hidrogo argues

that 8 U.S.C. § 1326(b) is unconstitutional on its face and as

applied in his case because it does not require the fact of a

prior felony or aggravated felony conviction to be charged in the

indictment and proved beyond a reasonable doubt. He thus

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-21033 -2-

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).

Limas-Hidrogo acknowledges that his argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but

asserts that the decision 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). 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).

Accordingly, as Limas-Hidrogo’s sole argument on appeal is

foreclosed, the district court’s judgment is AFFIRMED.