United States v. Martinez-Nataren

108 F. App'x 871

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2004
• Docket: 03-41677
• Status: Unpublished

Opinion

PER CURIAM: *

Eleazar Martinez-Nataren pleaded guilty and was convicted of illegal re-entry in violation of 8 U.S.C. § 1326(b)(2) and 6 U.S.C. §§ 202, 557. On appeal, Martinez-Nataren asserts 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Martinez-Nataren concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he nevertheless seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi. 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 overrules it. See Dabeit, 231 F.3d at 984.

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.