United States v. Lozano-Salazar ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40791
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO LOZANO-SALAZAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-144-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Armando Lozano-Salazar appeals his conviction of being found
in the United States following deportation after conviction of an
aggravated felony. He argues, for the first time on appeal, that
8 U.S.C. § 1326(b) is unconstitutional because it treats a prior
conviction for a felony or aggravated felony as a sentencing
factor and not as an element of the offense. Lozano-Salazar’s
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235, 239-47 (1998). Apprendi v. New Jersey, 530 U.S.
*
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that this opinion should not be published and is not precedent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. 03-40791
-2-
466, 489-90 (2000), did not overrule that decision. See United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Thus, the
district court did not err in sentencing Lozano-Salazar under
8 U.S.C. § 1326(b).
AFFIRMED.