IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40969
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS ANTONIO HERNANDEZ PRADO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-639-1
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marcos Antonio Hernandez Prado appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation in violation of 8 U.S.C. § 1326. Prado
argues that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
Prado acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
*
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that this opinion should not be published and is not precedent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. 02-40969
-2-
asserts that the decision has been cast into doubt by Apprendi
v. New Jersey, 530 U.S. 466, 490 (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.
United States v. Prado
Combined Opinion