United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40389
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMERITO ZELAYA-VASQUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-328-1
--------------------
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Emerito Zelaya-Vasquez (Zelaya) appeals his guilty-plea
conviction and sentence for being found present in the United
States following deportation and removal, without having obtained
the consent of the Attorney General or the Secretary of the
Department of Homeland Security. Zelaya 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
*
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this opinion should not be published and is not precedent except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. 04-40389
-2-
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), but raises it for possible review by the Supreme
Court.
“Apprendi did not overrule Almendarez-Torres.” United
States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001); see
Apprendi, 530 U.S. at 489-90. We must follow the precedent set
in Almendarez-Torres unless the Supreme Court itself determines
to overrule it. See Rivera, 265 F.3d at 312.
Zelaya also argues that his sentence violates Blakely v.
Washington, 124 S. Ct. 2531 (2004), because it is based on facts
not admitted or found by a jury. As he concedes, this argument
is foreclosed by United States v. Pineiro, 377 F.3d 464, 465-66
(5th Cir. 2004), petition for cert. filed (U.S. July 14, 2004)
(No. 04-5263).
AFFIRMED.