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. 03-40620
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS TULIO MADRID,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1654-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Marcos Tulio Madrid appeals his conviction and sentence
for illegal reentry. He argues that the district court plainly
erred by characterizing his state felony conviction for simple
possession of crack as an “aggravated felony” for purposes of
U.S.S.G. § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(B), when
that same offense was punishable only as a misdemeanor under
*
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that this opinion should not be published and is not precedent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. 03-40620
-2-
federal law. This issue, however, is foreclosed by United States
v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), and, therefore,
Madrid has not demonstrated plain error.
Madrid 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 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.