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. 04-40072
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS FERNANDO DIAZ-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1321-All
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Luis Fernando Diaz-Sanchez (Diaz-Sanchez) appeals his
conviction and sentence for illegal re-entry after deportation, a
violation of 8 U.S.C. § 1326(b)(2) and 6 U.S.C. §§ 202 and 557.
He argues that the “felony” and “aggravated felony” provisions of
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Diaz-Sanchez raises an issue
that he concedes is foreclosed, but he seeks to preserve it for
further review.
*
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that this opinion should not be published and is not precedent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. 04-40072
-2-
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). We must follow the precedent
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 marks and citation
omitted).
AFFIRMED.