United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 05-40008
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ESCOBAR-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1266-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Escobar-Reyes appeals from his guilty-plea conviction
for illegal reentry of a deported alien. Escobar-Reyes argues
that 8 U.S.C. § 1326(b) is unconstitutional on its face and as
applied in his case because it does not require the fact of a
prior felony or aggravated felony conviction to be charged in the
indictment and proved beyond a reasonable doubt. Escobar-Reyes
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but asserts that the
decision has been cast into doubt by Apprendi v. New Jersey, 530
*
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this opinion should not be published and is not precedent except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. 05-40008
-2-
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.