United States v. Madrid

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. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1654-ALL -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.