United States v. Medina-Saldana

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. 03-40934
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE MEDINA-SALDANA,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-270-1
--------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Jose Medina-Saldana appeals the sentence imposed following

entry of his guilty plea to a charge of being found in the United

States after deportation in violation of 8 U.S.C. § 1326. Medina

argues that the sentencing provisions of 8 U.S.C. § 1326(b) are

unconstitutional.

Medina-Saldana acknowledges that his argument is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),

but he asserts that the decision has been cast into doubt by

*
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that this opinion should not be published and is not precedent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. 03-40934
-2-

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to

preserve his argument for Supreme Court review.

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 and citation

omitted). The judgment of the district court is AFFIRMED.