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. 03-41169
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO MARTINEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-287-1
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Humberto Martinez-Martinez appeals his guilty-plea
conviction and sentence for being found illegally present in the
United States after deportation. He argues, pursuant to Apprendi
v. New Jersey, 530 U.S. 466 (2000), that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are elements
of the offense, not sentence enhancements, making those
provisions unconstitutional. Martinez concedes that this
argument is foreclosed and he raises it for possible review by
the Supreme Court.
*
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this opinion should not be published and is not precedent except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 for in 5TH CIR. R. 47.5.4.
No. 03-41169
-2-
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). We must follow the precedent
set in Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000) (internal quotation and citation
omitted).
AFFIRMED.