United States v. Garcia-Guzman

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. 03-40205
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMAS GARCIA-GUZMAN,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-654-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Tomas Garcia-Guzman (“Garcia”) appeals his guilty-plea

conviction and sentence for illegal reentry following

deportation. Garcia 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. Garcia 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that this opinion should not be published and is not precedent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. 03-40205
-2-

(1998), and he raises it for possible direct review by the

Supreme Court.

Garcia’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.