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. 03-41725
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO RIOS-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-609-1
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Antonio Rios-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. Rios 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this opinion should not be published and is not precedent except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. 03-41725
-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.