United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 02-41688
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENCARNACION LUJANO-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-399-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Encarnacion Lujano-Perez appeals the 70-month sentence
imposed following entry of his guilty plea to a charge of being
found in the United States after deportation in violation of
8 U.S.C. § 1326. Lujano-Perez argues that the sentencing
provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Lujano-Perez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
he asserts that Almendarez-Torres has been cast into doubt by
*
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that this opinion should not be published and is not precedent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. 02-41688
-2-
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to
preserve his argument for further review.
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). This court 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). The judgment of the district court is
AFFIRMED.