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. 05-40223
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO ARTURO-CORDOBA, also known as
Roberto Cordova,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-1415-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Roberto Arturo-Cordoba appeals his sentence following his
guilty-plea conviction of being a deported alien who reentered
the United States illegally. Cordoba argues that the “felony”
and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and
(2) are unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), requiring that his sentence be vacated and
the matter remanded for resentencing. He recognizes that under
Almendarez-Torres v. United States, 523 U.S. 224 (1998), relief
*
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this opinion should not be published and is not precedent except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. 05-40223
-2-
on this issue is foreclosed, but he states that he wishes to
raise the issue to preserve it for further possible review by the
Supreme Court.
In Almendarez-Torres, 523 U.S. at 235, the Supreme Court
held that the enhanced penalties in 8 U.S.C. § 1326(b) are
sentencing provisions, not elements of separate offenses. The
Court further held that the sentencing provisions are
constitutional. See id. at 239-47. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). We
must follow the precedent set in Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.
2003)(quotation marks and citation omitted). The judgment of the
district court is AFFIRMED.