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. 03-40128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DELGADO-GENCHIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1277-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Delgado-Genchis (“Delgado”) pleaded guilty to
illegal reentry following deportation after a conviction for an
aggravated felony in violation of 8 U.S.C. § 1326(a) and (b)(2).
The district court sentenced Delgado to 15 months’ imprisonment
and three years’ supervised release.
Delgado argues, for the first time on appeal, that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
*
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that this opinion should not be published and is not precedent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. 03-40128
-2-
(2000). He concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for Supreme Court 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 the precedent set in
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984.
Delgado also argues that a conflict exists between the
district court’s oral pronouncement of sentence and the written
judgment because the written judgment contains a condition of
supervised release prohibiting the possession of a dangerous
weapon, but at the sentencing hearing, the court did not mention
this prohibition. For the reasons outlined in United States v.
Torres-Aguilar, 352 F.3d 934, 937-38 (5th Cir. 2003), we conclude
that the district court’s omission of the dangerous-weapon
prohibition during the oral pronouncement of sentence did not
create a conflict with the sentence set forth in the judgment.
AFFIRMED.