United States v. Reyes-Jaimez

78 F. App'x 397

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 21, 2003
• Docket: 02-41521
• Status: Unpublished

Opinion

PER CURIAM. *

Andres Reyes-Jaimez (Reyes) appeals the 70-month sentence imposed following his guilty plea to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a) and (b).

Reyes argues that the sentence-enhancing provisions contained in 8 U.S.C. § 1326(b) are unconstitutional on their face and as applied in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Alternatively, Reyes argues that because his indictment did not specifically allege that he had a prior aggravated felony conviction, he was only convicted of illegal reentry, in violation of 8 U.S.C. § 1326(a). He contends that his sentence, which exceeds that authorized by 8 U.S.C. § 1326(a), is therefore illegal. Reyes’ arguments are raised for the first time on appeal.

Reyes concedes that his arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the arguments for Supreme Court review. 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). This court must follow the precedent set in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted).

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.