IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50233
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIGOBERTO RIVERA-CASTRO, a/k/a Rigoberto Castro-Garcia,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:01-CR-1380-ALL
October 8, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant Rivera-Castro appeals his sentence imposed following
his guilty plea conviction for illegal reentry into the United
States in violation of 8 U.S.C. § 1326. Rivera argues that the
district court erred in sentencing him based on § 1326(b)(2), which
provides that an illegal alien who was removed from this country
subsequent to a conviction for an aggravated felony shall be
sentenced to not more than twenty years, because his prior
*
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this opinion should not be published and is not precedent except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.
conviction was neither charged in his indictment nor presented to
the jury to be proven beyond a reasonable doubt. Although he
concedes that Almendarez-Torres v. United States1 held that a prior
aggravated felony is a sentencing factor, not an element of the
crime, he urges that Jones v. United States2 and Apprendi v. New
Jersey3 overruled Almendarez-Torres. However, we have noted on
numerous occasions that the Supreme Court has not overruled
Almendarez-Torres, and that therefore we are still bound to apply
it.4
Appellant’s sentence is therefore AFFIRMED.
1
523 U.S. 224 (1998).
2
526 U.S. 227 (1999).
3
530 U.S. 466 (2000).
4
See, e.g., United States v. Rayo-Valdez, – F.3d –, 2002 WL
1832140 (5th Cir. Aug. 12, 2002) (“We must follow [Almendarez-
Torres], which has not been overruled by the only court with the
power to do so, the Supreme Court.”); United States v. Rodriguez-
Montelongo, 263 F.3d 429, 434 (5th Cir. 2001) (“Although
[Appellant] is correct that Apprendi cast doubt on the continued
validity of Almendarez-Torres, it did not overrule that
decision.... It is for this court to apply the law as it exists and
for the Supreme Court to overrule its precedent if it so
chooses.”).
2