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. 05-40201
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR LEONEL PINEDA-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1200-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Cesar Leonel Pineda-Rodriguez appeals from his guilty-plea
conviction for illegal reentry of a deported alien. Pineda-
Rodriguez 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.
Pineda-Rodriguez 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.
*
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this opinion should not be published and is not precedent except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. 05-40201
-2-
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.