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. 03-40816
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS RESENDEZ-HERNANDEZ, also known as Ricardo Flores,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-131-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Carlos Resendez-Hernandez appeals his illegal reentry
conviction. Resendez concedes that the issue whether the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1)&(2) are unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000) is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), and he raises it solely
to preserve its further review by the Supreme Court. Apprendi
did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at
*
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that this opinion should not be published and is not precedent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. 03-40816
-2-
489-90. This court must therefore follow the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” See United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000) (internal quotation and
citation omitted).
AFFIRMED.