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. 03-41188
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS VILLALOBOS-CARDENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-408-1
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Jesus Villalobos-Cardenas (“Villalobos”) appeals the
sentence imposed following his guilty-plea conviction for illegal
re-entry after deportation in violation of 8 U.S.C. § 1326.
Villalobos contends that 8 U.S.C. §§ 1326(b)(1) and (b)(2) are
unconstitutional because they are treated as sentencing
provisions rather than as elements of the offense. He argues
that his sentence exceeds the two-year maximum term of
imprisonment which may be imposed under 8 U.S.C. § 1326(a).
*
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that this opinion should not be published and is not precedent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. 03-41188
-2-
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. Villalobos acknowledges that his argument is
foreclosed by Almendarez-Torres but asserts that the decision has
been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). 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). Accordingly, the judgment of the district
court is AFFIRMED.