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. 04-40449
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS OLALDE-SERNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-1001-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Luis Olalde-Serna 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).
Olalde-Serna 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 by Almendarez-Torres
*
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that this opinion should not be published and is not precedent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. 04-40449
-2-
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).
Olalde-Serna also argues that the district court improperly
sentenced him based on facts not admitted or found by a jury in
violation of Blakely v. Washington, 124 S. Ct. 2531 (2004). This
argument is foreclosed by United States v. Pineiro, 377 F.3d 464,
465-66 (5th Cir. 2004), petition for cert. filed (July 14, 2004).
AFFIRMED.