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. 03-40862
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES ARMANDO RODRIGUEZ-GARCIA, also known as
Armando Sustaita-Saenz,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-103-1
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Andres Armando Rodriguez-Garcia appeals his guilty-plea
conviction and sentence for being found illegally present in the
United States after deportation. He 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. Rodriguez-Garcia
*
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that this opinion should not be published and is not precedent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. 03-40862
-2-
concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and he raises it for possible
review by the Supreme Court.
This 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).
Rodriguez-Garcia argues that a conflict exists between the
district court’s oral pronouncement of sentence and the written
judgment because the written judgment contains a condition of
supervised release prohibiting the possession of a dangerous
weapon, but at the sentencing hearing, the court did not mention
this prohibition. For the reasons outlined 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 the oral pronouncement of sentence did not
create a conflict with the sentence set forth in the judgment.
Thus, this issue is also foreclosed.
AFFIRMED.