United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 11, 2004
Charles R. Fulbruge III
Clerk
No. 03-40968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL BARRIGAS-VALDOVINOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-200-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Miguel Barrigas-Valdovinos (“Barrigas”) appeals his sentence
following his conviction for illegal reentry after deportation.
See 8 U.S.C. § 1326(a) and (b). Prior to his deportation,
Barrigas had been convicted of a felony drug trafficking offense
for which he was sentenced to 180 days of custody, suspended
for three years of probation. Because this prior sentence was
suspended, Barrigas contends that the district court plainly
erred by increasing his offense level for the instant offense
*
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that this opinion should not be published and is not precedent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. 03-40968
-2-
by 12 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(B). See also
U.S.S.G. § 2L1.2, comment. (n.1(A)(iv)) (defining “sentence
imposed”). Given the lack of controlling authority in this
circuit on this issue, any error on the part of the district
court was not “clear or obvious” and could not have been plain
error. See United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc), abrogated in part, Johnson v. United
States, 520 U.S. 461 (1997).
Barrigas also contends that the sentence-enhancing
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Barrigas 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
Apprendi. He seeks to preserve his argument for further 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 marks and
citation omitted).
AFFIRMED.