United States v. Mendoza-Aguilar

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41286 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO MENDOZA-AGUILAR, also known as Gerardo Aguilar-Guzman,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-391-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Gerardo Mendoza-Aguilar (“Mendoza”) appeals his guilty-plea

conviction for illegal re-entry following deportation. Mendoza

argues that 8 U.S.C. § 1326(b) is unconstitutional in light of

Apprendi v. New Jersey, 530 U.S. 466 (2000). Mendoza argues

that, after Apprendi, it is apparent that a majority of the

Supreme Court now feels that Almendarez-Torres v. United States,

523 U.S. 224 (1998), was incorrectly decided. He acknowledges

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41286 -2-

that his argument is foreclosed by circuit precedent, but he

raises this issue to preserve it for possible review by the

Supreme Court. Apprendi did not overrule Almendarez-Torres. See

Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,

231 F.3d 979, 984 (5th Cir. 2000). Therefore, Mendoza’s argument

is foreclosed.

AFFIRMED.