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. 03-41677
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELEAZAR MARTINEZ-NATAREN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1100-ALL
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Eleazar Martinez-Nataren pleaded guilty and was convicted of
illegal re-entry in violation of 8 U.S.C. § 1326(b)(2) and
6 U.S.C. §§ 202, 557. On appeal, Martinez-Nataren asserts that
the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
Martinez-Nataren concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
*
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this opinion should not be published and is not precedent except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. 03-41677
-2-
nevertheless seeks to preserve the issue for Supreme Court review
in light of the decision in Apprendi. 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). We must
follow Almendarez-Torres unless and until the Supreme Court
overrules it. See Dabeit, 231 F.3d at 984.
Accordingly, the judgment of the district court is AFFIRMED.