United States v. Salinas-Romo

87 F. App'x 951

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 17, 2004
• Docket: 03-40007
• Status: Unpublished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. 02-41751 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENE OSVALDO SALINAS-ROMO,

Defendant-Appellant,

Consolidated with No. 03-40007

RENE OSBALDO SALINAS-ROMO, also known as Arnoldo Guzman-Romo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-413-ALL --------------------

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

PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. No. 02-41751 c/w No. 03-40007 -2-

Rene Osvaldo Salinas-Romo appeals his guilty-plea conviction

and sentence for being found illegally present in the United

States after deportation as well as the subsequent revocation of

a term of supervised release from an earlier conviction. 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)(1) and (2) are elements of the offense, not sentence

enhancements, making those provisions unconstitutional. Salinas

concedes that this argument is foreclosed and he raises it for

possible review by the Supreme Court.

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.

R. 47.5.4.