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. 05-40200
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL ENRIQUEZ GOMEZ-MORENO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1785-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Manuel Enriquez Gomez-Moreno appeals from his guilty-plea
conviction for illegal reentry of a deported alien. For the
first time on appeal, Gomez-Moreno 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. Gomez-Moreno 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
*
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this opinion should not be published and is not precedent except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. 05-40200
-2-
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.