IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10996
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO MORA-HINOJOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-21-1-C
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Domingo Mora-Hinojos (“Mora”) appeals his sentence following
his guilty-plea conviction for illegally reentering the United
States after having been deported, in violation of 8 U.S.C.
§ 1326. Mora argues that a prior aggravated-felony conviction is
an element of the offense of reentry following deportation after
an aggravated-felony conviction in violation of § 1326(b) and
that, because the indictment to which he pleaded guilty failed to
allege a prior felony conviction, his sentence is illegal. Mora
concedes that his argument is foreclosed by 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that this opinion should not be published and is not precedent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. 00-10996
-2-
Almendarez-Torres, 523 U.S. 224 (1998), but he argues that
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), casts doubt
on Almendarez-Torres and asserts that he is raising the argument
to preserve it for Supreme Court review.
Although the Supreme Court noted in Apprendi that, arguably,
Almendarez-Torres was incorrectly decided, the Court expressly
declined to overrule Almendarez-Torres. Apprendi, 120 S. Ct. at
2362-63 & n.15; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), petition for cert. filed (U.S. Jan. 26, 2001) (No.
00-8299). This court is compelled to 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 district court’s judgment
is therefore AFFIRMED.