United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40359
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABELARDO TREJO-SEGURA,
also known as Antonio Trejo-Segura,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-778-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Abelardo Trejo-Segura (Trejo-Segura) appeals his conviction
and sentence for being an alien unlawfully found in the United
States after deportation after having been convicted of an
aggravated felony in violation of 8 U.S.C. § 1326 (a) & (b).
For the first time on appeal, Trejo-Segura argues that
8 U.S.C. § 1326(b) is unconstitutional on its face and as applied
in his case because it does not require the fact of a prior
*
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that this opinion should not be published and is not precedent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. 03-40359
-2-
felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. He argues
further that because his indictment did not allege the fact of
his prior aggravated felony conviction as a separate element of
the offense, the indictment charged him only with an offense
under 8 U.S.C. § 1326(a) rather than 8 U.S.C. § 1326(b), and his
maximum punishment is limited to two years.
Trejo-Segura acknowledges that his arguments are foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
wishes to preserve the issues for Supreme Court review in light
of 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).
Thus, we 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, Trejo-Segura's arguments are foreclosed, and
his conviction and sentence are AFFIRMED.