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. 04-40218
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REYES VILLASENOR-ARROYO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1560-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Reyes Villasenor-Arroyo appeals his guilty-plea conviction
and sentence for being found illegally present in the United
States after deportation pursuant to 8 U.S.C. § 1326(a) and (b).
Villasenor-Arroyo 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)(1) and (2) are elements of the
offense, not sentence enhancements, making those provisions
unconstitutional. He concedes that this argument is foreclosed
*
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that this opinion should not be published and is not precedent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. 04-40218
-2-
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
he raises it for possible review by the Supreme Court.
This argument is foreclosed by Almendarez-Torres, 523 U.S.
at 235. 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.