IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20587
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES FRANCISCO PEDRO,
also known as Andres Francisco Garcia,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-728-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Andres Francisco Pedro (Pedro) appeals his conviction and
sentence following a guilty plea to illegal reentry into the
United States following deportation in violation of 8 U.S.C.
§ 1326(a)(1) and (b)(2). Pedro argues he should have been
sentenced to no more than two years of imprisonment because a
prior felony conviction is an element of the offense of reentry
following deportation after a felony conviction. Pedro concedes
that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). Pedro contends, however, that
*
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that this opinion should not be published and is not precedent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. 00-20587
-2-
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), casts doubt
on Almendarez-Torres and 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." Id. (internal quotation and
citation omitted). Such is true even if it seems "pellucidly
clear" that given the opportunity, the Supreme Court would
overrule its precedent. Id. Without the benefit of Apprendi,
Pedro’s claim fails.
Pedro’s conviction and sentence are AFFIRMED.