United States v. Morin-Davila

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. 03-40500 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JESUS MORIN-DAVILA, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-774-1 -------------------- Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges. PER CURIAM:* Jesus Morin-Davila (“Morin”) appeals his guilty-plea conviction and sentence for illegal reentry following deportation. Morin argues pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are elements of the offense, not sentence enhancements, making those provisions unconstitutional. Morin concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40500 -2- (1998), and he raises it for possible review by the Supreme Court. Morin’s Apprendi argument is foreclosed by Almendarez-Torres, 523 U.S. at 235. We must follow the precedent set in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation and citation omitted). AFFIRMED.