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. 04-40678
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-953-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Antonio Garcia appeals his guilty-plea conviction and
sentence for being found present in the United States following
deportation and removal after having been convicted of an
aggravated felony, without having obtained the consent of the
Attorney General or the Secretary of the Department of Homeland
Security. Garcia 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
*
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this opinion should not be published and is not precedent except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. 04-40678
-2-
offense, not sentence enhancements, making those provisions
unconstitutional. He concedes that this 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.
Garcia also argues that if Blakely v. Washington, 124 S. Ct.
2531 (2004), applies to the United States Sentencing Guidelines
his sentence could not be enhanced based on any prior convictions
unless he admitted to them or they were found by a jury beyond a
reasonable doubt. 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.