United States v. Rios-Martinez

Opinion

United States Court of Appeals Fifth Circuit

FILED IN THE UNITED STATES COURT OF APPEALS June 23, 2004 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-41725 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ANTONIO RIOS-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-609-1 --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Antonio Rios-Martinez appeals his guilty-plea conviction and

sentence for being found illegally present in the United States

after deportation. He argues, pursuant to Apprendi v. New

Jersey, 530 U.S. 466 (2000), that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are elements of the

offense, not sentence enhancements, making those provisions

unconstitutional. Rios concedes that this argument is

foreclosed, and he raises it for possible review by the Supreme

Court.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set for in 5TH CIR. R. 47.5.4. No. 03-41725 -2-

This 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.