United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21206
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ISAAC REYES-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CR-159-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Jose Isaac Reyes-Hernandez (Reyes) appeals his conviction
and the 71-month sentence imposed following his plea of guilty to
illegal reentry after deportation following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
For the first time on appeal, Reyes argues that the felony and
aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2)
are unconstitutional.
*
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that this opinion should not be published and is not precedent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. 03-21206
-2-
Reyes 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 Supreme Court 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.