United States v. Magallon-Molina

140 F. App'x 579

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 17, 2005

Charles R. Fulbruge III Clerk No. 04-20598 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL MAGALLON-MOLINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 4:04-CR-53-1 --------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Having pleaded guilty to an indictment charging him with

being illegally present in the United States after deportation

following a conviction for an aggravated felony, Miguel Magallon-

Molina (“Magallon”) argues on appeal that the “felony” and

“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)

are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.

466 (2000). Magallon contends that Apprendi dictates that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-20598 -2-

conviction must be vacated and that he must be resentenced for

the lesser included offense of simple illegal reentry found in

§ 1326(a). Magallon concedes that his argument is foreclosed by

this court’s precedent, but he raises the issue to preserve it

for Supreme Court review.

We reject Magallon’s challenge to the constitutionality of

8 U.S.C. § 1326. See Almendarez-Torres v. United States, 523

U.S. 224, 235 (1998); Apprendi, 530 U.S. at 489-90. This court

must follow the precedent set in Almendarez-Torres unless and

until the decision is overruled by the Supreme Court. United

States v. Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir. 2005),

petition for cert. filed (July 22, 2005) (No. 05-5469).

Accordingly, finding no error, we affirm.

AFFIRMED.