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. 05-40232
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO AVILA-SALDANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:04-CR-511-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Benito Avila-Saldana appeals his guilty-plea conviction of
illegal reentry into the United States after having been
deported. Avila-Saldana argues that Almendarez-Torres v. United
States, 523 U.S. 224 (1998), has been undercut by later Supreme
Court opinions, particularly Apprendi v. New Jersey, 530 U.S. 466
(2000). Thus, he argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
Avila-Saldana recognizes that relief is foreclosed but states
*
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this opinion should not be published and is not precedent except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. 05-40232
-2-
that he wishes to raise the issue for possible further review in
the Supreme Court.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90. 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). Therefore, Avila-Saldana’s argument fails. See id.
The judgment of the district court is AFFIRMED.