United States v. Mendoza-Medina

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-50276
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ANTONIO MENDOZA-MEDINA,
also known as Antonio Mendoza,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP—00-CR-1689-ALL-H
                        - - - - - - - - - -
                          October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Antonio Mendoza-Medina (“Mendoza”) appeals the 77-month

sentence imposed following his plea of guilty to a charge of

illegally reentering the United States after a deportation that

occurred subsequent to a conviction for the aggravated-felony

offense of forgery, a violation of 8 U.S.C. § 1326(b)(2).

Mendoza argues that a prior aggravated-felony conviction is an

element of 8 U.S.C. § 1326(b)(2) under Apprendi v. New Jersey,

530 U.S. 466 (2000), and thus that the district court


     *
        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that this opinion should not be published and is not precedent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. 01-50276
                                -2-

constructively amended the indictment by finding the required

prior aggravated-felony conviction to be a conviction other than

that alleged in the indictment.

     Mendoza concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998).    Mendoza

nevertheless seeks to preserve the issue for Supreme Court review

in light of the decision in Apprendi.     Apprendi did not overrule

Almendarez-Torres.   See Apprendi, 530 U.S. at 489-90; see also

United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)(noting

that the Supreme Court in Apprendi expressly declined to overrule

Almendarez-Torres), cert. denied, 121 S. Ct. 1214 (2001).    This

court must therefore 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).   Accordingly, the judgment of the district

court is AFFIRMED.
United States v. Mendoza-Medina

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