IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21239
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO ESTRADA-AGUIRRE, also known as
Rogelio Solorzano-Joaquin,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-499-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Rogelio Estrada-Aguirre ("Estrada") appeals the 57-month
sentence imposed following his guilty plea to a charge of being
found in the United States after having been deported following
an aggravated felony in violation of 8 U.S.C. § 1326. Estrada
argues that the sentencing provision of 8 U.S.C. § 1326(b)(2) is
unconstitutional in light of the Supreme Court's holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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that this opinion should not be published and is not precedent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. 01-21239
-2-
Estrada concedes that his argument is foreclosed by the
Supreme Court's decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 531 U.S. 1202 (2001). This court must 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).
AFFIRMED.
United States v. Estrada-Aguirre
Combined Opinion