IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50547
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J. CARMEN ROJAS-ROJAS, also known as Carmelo Rojas-Rojas,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-111-ALL
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January 14, 2003
Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
J. Carmen Rojas-Rojas appeals from his guilty-plea
conviction for illegal reentry into the United States after
having been previously deported following an aggravated felony.
He first argues that the district court erred by departing
upwardly from the Sentencing Guidelines when determining his
sentence. Rojas-Rojas fails to show that the district court
abused its discretion by granting the upward departure. See
*
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that this opinion should not be published and is not precedent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. 02-50547
-2-
United States v. Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en
banc).
Rojas-Rojas also contends that 8 U.S.C. § 1326(b) is
unconstitutional. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but asserts that Almendarez-Torres has been called into
doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000). He seeks
to preserve his argument for further 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). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
The judgment of the district court is AFFIRMED.