United States v. Medrano-Nunez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2003
• Docket: 02-41262
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 25, 2003

Charles R. Fulbruge III Clerk No. 02-41262 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOE MEDRANO-NUNEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-452-ALL --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Noe Medrano-Nunez appeals his conviction and sentence for

illegal reentry. He argues that his conviction for unauthorized

use of a motor vehicle was not an “aggravated felony” and

therefore did not warrant an eight-level enhancement under

U.S.S.G. § 2L1.2(b)(1)(C); and that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b)(1) & (2) are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41262 -2-

Medrano concedes that these arguments are foreclosed, and he

seeks only to preserve their further review by the Supreme Court.

The issue whether Medrano properly received an eight-level

enhancement under U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed by

United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.

1999), which held that the offense of unauthorized use of a motor

vehicle is a crime of violence within the intendment of 18 U.S.C.

§ 16. We are bound by this court’s precedent absent an

intervening Supreme Court decision or a subsequent en banc

decision. See United States v. Short, 181 F.3d 620, 624 (5th Cir.

1999).

Medrano’s Apprendi argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 235 (1998). We must

follow the precedent set in Almendarez-Torres “unless and until

the Supreme Court itself determines to overrule it.” United

States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal

quotation and citation omitted).

AFFIRMED.