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. 02-41644
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS MARTINEZ-MATA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-440-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Elias Martinez-Mata (“Martinez”) appeals his guilty-plea
conviction and sentence for illegal reentry following
deportation. Martinez argues pursuant to Apprendi v. New Jersey,
530 U.S. 466 (2000), that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the
offense, not sentence enhancements, making those provisions
unconstitutional. Martinez concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
*
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that this opinion should not be published and is not precedent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. 02-41644
-2-
(1998), and he raises it for possible direct review by the
Supreme Court.
Martinez’s Apprendi argument is foreclosed by
Almendarez-Torres, 523 U.S. at 235. 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.