United States v. Mendoza-Barcenas

87 F. App'x 989

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 2004
• Docket: 03-40186
• Status: Unpublished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 February 18, 2004

Charles R. Fulbruge III Clerk No. 03-40186 c/w Nos. 03-40187 & 03-40496 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOE MENDOZA-BARCENAS,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. M-02-CR-611-1 --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Noe Mendoza-Barcenas appeals his guilty-plea conviction

for illegal reentry into the United States after deportation and

the revocation of his supervised release and probation. He

asserts that 8 U.S.C. § 1326(a)(1) and (2) are unconstitutional

on their face and as applied to him. He also argues that the

prior conviction that resulted in his increased sentence is an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Nos. 03-40186 c/w 03-40496 & 03-40187 -2-

element of the offense under 8 U.S.C. § 1326(b) that should have

been alleged in the indictment.

Because a challenge under Apprendi v. New Jersey, 530 U.S.

466 (2000) is not jurisdictional, Mendoza-Barcenas may not

present these claims in an appeal following the revocation of

supervised release. See United States v. Longoria, 298 F.3d 367,

372 (5th Cir. 2002) (en banc); United States v. Moody, 277 F.3d

719, 720-21 (5th Cir. 2001); United States v. Teran, 98 F.3d 831,

833 n.1 (5th Cir. 1996). Regardless, Mendoza-Barcenas

acknowledges that his arguments are foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224, 226-27 (1998), but he

seeks to preserve the issue for Supreme Court review. Apprendi

did not overrule Almendarez-Torres. Apprendi, 530 U.S. at 489-

90, 496. This court must follow 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).

AFFIRMED.