United States v. Contreras-Perez

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. 03-40685 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BENITO CONTRERAS-PEREZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1416-ALL -------------------- Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges. PER CURIAM:* Benito Contreras-Perez (Contreras) appeals his guilty-plea conviction and sentence for illegal reentry following a prior deportation. He asserts that the sentence-enhancing provisions contained in 8 U.S.C. § 1326(b) are facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Contreras acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve the issue for further review. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40685 -2- 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 Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is AFFIRMED.