United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-11128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS SALGADO-RODRIGUEZ,
also known as Miguel Cortez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CR-400-ALL-P
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Juan Carlos Salgado-Rodriguez (“Salgado”) appeals the
sentence he received following his guilty-plea conviction for
illegal reentry, in violation of 8 U.S.C. § 1326. He challenges
the 16-level enhancement he received because of his prior
aggravated felony conviction for aiding and abetting the
transportation of illegal aliens for profit, arguing that the
district court erred when it looked beyond the indictment
*
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that this opinion should not be published and is not precedent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. 03-11128
-2-
charging him with transporting aliens and considered information
in his prior presentence report (“PSR”) to increase his sentence
under U.S.S.G. § 2L1.2(b)(1)(C). This issue is foreclosed.
United States v. Sanchez-Garcia, 319 F.3d 677 (5th Cir.),
cert. denied, 124 S.Ct. 311 (2003).
Salgado also urges that his prior alien smuggling conviction
should not have been used to enhance his sentence because it
was an element of the offense which had to be charged in his
indictment. He acknowledges that his argument is barred by
Almendarez-Torres v. United States, 523 U.S. 224 (1998) but urges
that Almendarez-Torres was effectively overruled a majority of
the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466
(2000).**
Salgado’s prior conviction was not an element of the offense
but is a sentencing factor which need not be alleged in the
indictment. See Almendarez-Torres, 523 U.S. at 235; see also
§ 2L1.2(b)(1)(C). Apprendi did not overrule Almendarez-Torres.
Apprendi, 530 U.S. at 489-90, 496; 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 district court’s judgment is AFFIRMED.
**
Salgado in turn concedes that this argument is foreclosed
but seeks to preserve the issue for Supreme Court review.