United States v. Reyes-Jaimez , 78 F. App'x 397 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41521
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRES REYES-JAIMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-278-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Andres Reyes-Jaimez (Reyes) appeals the 70-month sentence
imposed following his guilty plea to illegal reentry following
deportation, in violation of 8 U.S.C. § 1326(a) and (b).
Reyes argues that the sentence-enhancing provisions
contained in 8 U.S.C. § 1326(b) are unconstitutional on their
face and as applied in light of the Supreme Court’s decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Alternatively,
Reyes argues that because his indictment did not specifically
*
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that this opinion should not be published and is not precedent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. 02-41521
-2-
allege that he had a prior aggravated felony conviction, he was
only convicted of illegal reentry, in violation of 8 U.S.C.
§ 1326(a). He contends that his sentence, which exceeds that
authorized by 8 U.S.C. § 1326(a), is therefore illegal. Reyes’
arguments are raised for the first time on appeal.
Reyes concedes that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
seeks to preserve the arguments for Supreme Court 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 the precedent set in
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).
Accordingly, the district court’s judgment is AFFIRMED.