United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41457
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO CUELLAR-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-549-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Guillermo Cuellar-Torres (Cuellar) pleaded guilty to being a
previously-deported alien unlawfully present and found in the
United States without permission, in violation of 8 U.S.C.
§ 1326(a). The district court sentenced Cuellar to 41 months’
imprisonment, followed by two years’ supervised release.
Cuellar argues that the district court’s factual finding
underlying his denial of a downward departure was clearly
erroneous. This court has no jurisdiction to review the district
*
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this opinion should not be published and is not precedent except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. 03-41457
-2-
court’s decision because “the court’s refusal is based on its
determination that the departure is not warranted on the facts of
the case.” United States v. Buck, 324 F.3d 786, 797 (5th Cir.
2003). This portion of Cuellar’s appeal is DISMISSED.
Cuellar also argues that the offense for which he was
indicted has a maximum sentence of two years’ imprisonment
because the indictment did not allege that he had a prior
conviction for an aggravated felony. See 8 U.S.C. § 1326(a),
(b). Cuellar acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but
he 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). This part of the district court’s judgment is
AFFIRMED.
APPEAL DISMISSED FOR LACK OF JURISDICTION IN PART; AFFIRMED
IN PART.