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. 03-40537
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LORENZO REYES-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-429-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Juan Lorenzo Reyes-Rodriguez appeals his guilty-plea
conviction and sentence for being an alien found in the United
States unlawfully after deportation. He argues for the first
time on appeal that 8 U.S.C. § 1326(b) is unconstitutional
because it does not require the prior aggravated felony
conviction used to increase his sentence to be alleged in the
indictment and proven as an element of the offense. He argues
that because the indictment did not allege his prior aggravated
*
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that this opinion should not be published and is not precedent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. 03-40537
-2-
felony conviction, his sentence to more than two years of
imprisonment and one year of supervised release is illegal.
Reyes-Rodriguez acknowledges that his arguments are
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issues for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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). Reyes-Rodriguez’s arguments are foreclosed.
The judgment of the district court is AFFIRMED.