United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21033
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS LAURO LIMAS-HIDROGO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-168-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Lauro Limas-Hidrogo appeals from his guilty-plea
conviction for being illegally present in the United States after
being previously deported subsequent to an aggravated felony
conviction. For the first time on appeal, Limas-Hidrogo argues
that 8 U.S.C. § 1326(b) is unconstitutional on its face and as
applied in his case because it does not require the fact of a
prior felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. He thus
*
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this opinion should not be published and is not precedent except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. 03-21033
-2-
contends that his sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a).
Limas-Hidrogo acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), 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, as Limas-Hidrogo’s sole argument on appeal is
foreclosed, the district court’s judgment is AFFIRMED.