United States v. Rios-Elias

95 F. App'x 580

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. 03-20804 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCO ANTONIO RIOS-ELIAS, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-675-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Marco Antonio Rios-Elias (Rios) pleaded guilty to an

indictment charging that he was found in the United States after

having been deported and convicted of an aggravated felony.

For the first time on appeal, he argues that 8 U.S.C.

§ 1326(b)(1) and (b)(2) are unconstitutional in light of the

Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466,

490 (2000). Rios recognizes that relief is presently foreclosed

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-20804 -2-

in this court, but raises the issue to preserve it for further

review.

Apprendi did not overrule Almendarez-Torres v. United

States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 489-90;

see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000). This court must therefore 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 and citation omitted). The judgment of the district

court is AFFIRMED.