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.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP—00-CR-1689-ALL-H
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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that this opinion should not be published and is not precedent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.