United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41577
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MARTIN MEDRANO CANTU, also known
as Juan Manuel Lopez, also known as
Juan Moreno Garcia, also known as Juan
Martin Campos-Cantu,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-43-ALL
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Juan Martin Medrano Cantu 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. Cantu
argues that the “felony” and “aggravated felony” provisions of
8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
*
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that this opinion should not be published and is not precedent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. 02-41577
-2-
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Cantu acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
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.