United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 22, 2005
Charles R. Fulbruge III
Clerk
No. 04-41258
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER HERNANDEZ-NEGRETE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-150-ALL
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Javier Hernandez-Negrete (“Hernandez”) appeals
following his guilty-plea conviction and 57-month sentence of
imprisonment on one count of being found in the United States,
without permission, following removal after having been convicted
of an aggravated felony.
For the first time on appeal, Hernandez argues that the
sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional
because they do not require the fact of a prior felony or
*
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this opinion should not be published and is not precedent except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. 04-41258
-2-
aggravated felony conviction to be charged in the indictment and
proved beyond a reasonable doubt. He contends that his sentence
is invalid, and he argues that it should not exceed the two-year
maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a).
Hernandez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his
argument for further review.
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). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted).
AFFIRMED.