United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 27, 2005
Charles R. Fulbruge III
Clerk
No. 04-41146
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL PALACIOS-FRAUSTO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-974-ALL
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gabriel Palacios-Frausto (“Palacios”) appeals the forty-
six-month sentence imposed following his conviction for illegal
reentry into the United States after deportation. He argues that
the enhancement provisions under 8 U.S.C. § 1326(b) are unconstitu-
tional. He further argues that the “timing” of his prior felony
conviction, which was used to enhance his sentence, is a separate
fact that must be alleged in the indictment and proven to a jury
beyond a reasonable doubt.
*
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opinion should not be published and is not precedent except under the limited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.
Palacios acknowledges that his first argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for Supreme Court review in light of the decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The Supreme Court’s
recent decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004),
and United States v. Booker, 125 S. Ct. 738 (2005) did not overrule
Almendarez-Torres. See Booker, 125 S. Ct. at 756; Blakely, 124
S. Ct. at 2536-43. This court does not have the authority to
overrule Almendarez-Torres. See Dabeit, 231 F.3d at 984. Thus,
Palacios’s argument is foreclosed.
Palacios’s argument that the indictment must allege the
“timing” of the prior felony conviction, which was used to enhance
his sentence under 8 U.S.C. § 1326(b), has no merit. Palacios has
not explained why an indictment that need not allege the
defendant’s prior conviction at all under Almendarez-Torres is
deficient for omitting the details of that prior conviction.
Accordingly, Palacios’s conviction and sentence are
AFFIRMED.
2