IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20432
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON ERNESTO CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-368-ALL
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February 4, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ramon Ernesto Cruz appeals his conviction and sentence for
illegal reentry. He argues that the evidence was insufficient to
establish proper venue; that his conviction for unauthorized use
of a motor vehicle was not an “aggravated felony” and therefore
did not warrant an eight-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(C); and that the “felony” and “aggravated felony”
*
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that this opinion should not be published and is not precedent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. 02-20432
-2-
provisions of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Cruz’s motion for judgment of acquittal was insufficient to
preserve the venue issue for appellate review, and it is
therefore waived. See United States v. Carbajal, 290 F.3d 277,
288-89 & n.19 (5th Cir.), cert. denied, 123 S. Ct. 34 (2002).
Cruz concedes that his remaining arguments are foreclosed, and he
seeks only to preserve their further review by the Supreme Court.
The issue whether Cruz properly received an eight-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed by
United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.
1999), which held that the offense of unauthorized use of a motor
vehicle is a crime of violence within the intendment of 18 U.S.C.
§ 16. We are bound by this court’s precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. See United States v. Short, 181 F.3d 620, 624
(5th Cir. 1999).
Cruz’s Apprendi argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). We must follow the
precedent set in Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation
and citation omitted).
AFFIRMED.