IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40597
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO FLORES-BAUTISTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-509-ALL
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gilberto Flores-Bautista appeals his guilty-plea conviction
for illegally reentering the United States after having been
deported. He contends that the sentence-enhancing provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional on their
face in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
that the unconstitutionality of the statute is not remedied by
the fact that the indictment alleged that he had been convicted
*
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that this opinion should not be published and is not precedent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. 02-40597
-2-
of a prior aggravated felony. Acknowledging that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), 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. Dabiet, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). This court
will 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.