United States v. Santillan-Villa

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 22, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-40975 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN SANTILLAN-VILLA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-144-ALL --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Santillan-Villa (Santillan) appeals the sentencing

following his guilty-plea conviction for being found in the

United States after having been deported. Santillan contends

that the district court did not comply with FED. R. CRIM.

P. 32(c)(3)(A) at sentencing. The court asked Santillan whether

he had discussed the presentence report with defense counsel, and

Santillan has not established plain error. See United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40975 -2-

Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001), cert.

denied, 535 U.S. 991 (2002).

Santillan also contends that the sentence-enhancing

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

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Santillan 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). Accordingly, the judgment of the district

court is AFFIRMED.