United States v. Sanchez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41223 c/w No. 02-41225 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALEJANDRO SANCHEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-233-1 USDC No. B-02-CR-402-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Alejandro Sanchez appeals his guilty-plea conviction

and sentence for illegal reentry following a prior deportation

and the revocation of supervised release on his conviction for

conspiring to distribute and to possess with intent to distribute

cocaine. He asserts that the sentence-enhancing provisions

contained in 8 U.S.C. § 1326(b) are facially unconstitutional in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41223 c/w No. 02-41225 -2-

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Sanchez

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but seeks to preserve the

issue for further 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 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).

Sanchez also seeks to challenge the constitutionality of 21

U.S.C. § 841(a) and (b) in light of Apprendi. Because a

challenge under Apprendi is not jurisdictional, he may not

present this claim in an appeal following the revocation of

supervised release. See United States v. Teran, 98 F.3d 831, 833

n.1 (5th Cir. 1996); United States v. Longoria, 298 F.3d 367, 372

(5th Cir. 2002)(en banc). Moreover, as Sanchez concedes, his

Apprendi argument is foreclosed by United States v. Slaughter,

238 F.3d 580, 582 (5th Cir. 2000). The judgment of the district

court is AFFIRMED.