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. 03-41128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MAGALLANES-NIETO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-250-1
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Jose Magallanes-Nieto (Magallanes) appeals his guilty-plea
conviction and sentence for being unlawfully present in the
United States following deportation. He argues that his prior
Texas state conviction for unauthorized use of a motor vehicle
was not an “aggravated felony” and, therefore, did not warrant an
eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He also
contends that the district court lacked jurisdiction to convict
and sentence him because the felony and aggravated felony
*
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that this opinion should not be published and is not precedent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. 03-41128
-2-
provisions in 8 U.S.C. §§ 1326(b)(1) & (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000).
Magallanes concedes that these arguments are foreclosed but
seeks to preserve further review by the Supreme Court. This
court has previously held that a conviction for unauthorized use
of a motor vehicle is a crime of violence under 18 U.S.C. § 16
and will support the aggravated felony enhancement in § 2L1.2.
United States v. Galvan-Rodriguez, 169 F.3d 217, 220 (5th Cir.
1999). We are bound by this court’s precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. See United States v. Garcia Abrego, 141 F.3d 142, 151
n.1 (5th Cir. 1998).
Magallanes’ Apprendi argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998). 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).
Accordingly, Magallanes’ conviction and sentence are AFFIRMED.