United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-41602
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADELFO DUARTE-JUAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-911-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Adelfo Duarte-Juarez appeals his sentence after his guilty-
plea conviction for illegally reentering the United States after
being deported. See 8 U.S.C. § 1326(a) and (b). He contends
that the district court erroneously increased his offense level
by 16 levels because his prior conviction for harboring illegal
aliens for profit is not an “alien smuggling offense” under
U.S.S.G. § 2L1.2(b)(1)(A)(vii).
*
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that this opinion should not be published and is not precedent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. 03-41602
-2-
This court rejected Duarte’s essential contention in United
States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002), cert.
denied, 538 U.S. 991 (2003). The offenses listed in 8 U.S.C.
§ 1324(a)(1)(A), which include harboring aliens, are “alien
smuggling” offenses under U.S.S.G. § 2L1.2(b)(1)(A)(vii).
Solis-Campozano, 312 F.3d at 167-68. Duarte concedes that his
argument is foreclosed, and he raises the issue only to preserve
it for possible review by the United States Supreme Court.
Duarte contends that his sentence is invalid because the
sentencing scheme of 8 U.S.C. § 1326(a) and (b) is
unconstitutional and the prior conviction that resulted in his
increased sentence was an element of the offense that should have
been alleged in his indictment. Duarte acknowledges that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235, 237-39 (1998). He asserts that the decision has
been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), and he raises the issue only to preserve it for possible
review by the United States Supreme Court.
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). The judgment of the district court is
AFFIRMED.