IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41009
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS CALDERON-MESA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas, Laredo
L-00-CR-232-1
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May 14, 2001
Before JONES, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jesus Calderon-Mesa appeals from the sentence imposed upon
him following his guilty plea and conviction for the offense of
illegal re-entry into the United States following deportation; 8
U.S.C. § 1326(b). Specifically, he contends that a prior offense
upon which his sentence was enhanced constitutes an element of
the offense and thus the failure of the superseding indictment to
allege the prior offense resulted in an illegal sentence.
*
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that this opinion should not be published and is not precedent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.
Calderon-Mesa's argument relies on Apprendi v. New Jersey, 120
S.Ct. 2348, 2362-63 (2000), for support. He acknowledges that
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for
further review suggesting that Apprendi places the authority of
Almendarez-Torres in question.1 The Supreme Court expressly
declined to overrule Almendarez-Torres in Apprendi. Accordingly,
we are required to 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),
cert. denied, 121 S.Ct. 1214 (2001).2
The judgment of the district court is AFFIRMED.
1
We find no merit in the government's argument that
Calderon-Mesa failed to raise the issue in the district court.
2
In his original brief, Calderon-Mesa had raised in his
first issue attacks based on the purported failure of the
district court to follow Rule 11 of the Federal Rules of Criminal
Procedure. Prior to submission to the panel, Calderon-Mesa
withdrew his first issue complaints and accordingly they are not
before us and not considered on appeal.
2