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. 03-41181
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO RODRIGUEZ-TELLEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-307-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Fernando Rodriguez-Tellez (Rodriguez) appeals his guilty
plea conviction for illegal reentry into the United States
following an aggravated felony conviction in violation of
8 U.S.C. § 1326. For the first time on appeal, Rodriguez argues
that the sentencing provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
*
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that this opinion should not be published and is not precedent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. 03-41181
-2-
Rodriguez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue 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).
AFFIRMED.