United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40876
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL MANZO-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-21-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Gabriel Manzo-Lopez appeals his conviction of illegal
reentry following deportation. He argues that his previous
deportation proceeding was fundamentally unfair due to the
retroactive application of statutory changes to the immigration
laws barring him from seeking a waiver of deportation. He
acknowledges that his argument is foreclosed by circuit precedent
but he wishes to preserve the issue for further review.
*
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that this opinion should not be published and is not precedent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. 02-40876
-2-
Manzo-Lopez’s deportation proceeding was not rendered
fundamentally unfair because he was not able to argue for a
waiver of deportation. See United States v. Lopez-Ortiz, 313
F.3d 225, 231 (5th Cir. 2002), cert. denied, 123 S. Ct. 922
(2003).
Manzo-Lopez argues for the first time on appeal that 8
U.S.C. § 1326(b)(1) and (2) is unconstitutional because a prior
felony conviction is an element of the offense of illegal re-
entry, and not merely a sentence enhancement, and should have
been charged in the indictment and proven beyond a reasonable
doubt. He acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve the issue for further review.
Apprendi v. New Jersey, 530 U.S. 466 (2000) 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). Accordingly,
the judgment of the district court is AFFIRMED.