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. 03-40434
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO RANGEL-ORDUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1513-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Gerardo Rangel-Orduna (“Rangel”) pleaded guilty to being
found in the United States after deportation following his
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court sentenced Rangel to 37
months’ imprisonment and three years’ supervised release.
Rangel 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that this opinion should not be published and is not precedent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. 03-40434
-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 (internal
quotation and citation omitted).
Rangel also argues that a conflict exists between the
district court’s oral pronouncement of sentence and the written
judgment; the written judgment contains a condition of supervised
release prohibiting the possession of a dangerous weapon, which
the court did not mention at sentencing. For the reasons set
forth 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 its oral pronouncement
of sentence did not create a conflict with the sentence set forth
in the written judgment.
AFFIRMED.