United States v. Cedillo-Aguirre ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50264
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS CEDILLO-AGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-528-ALL-WWJ
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Carlos Cedillo-Aguirre (“Cedillo”) appeals the sentencing
following his jury conviction for illegal reentry into the United
States following deportation. Cedillo contends that 8 U.S.C.
§ 1326(b)(2) is unconstitutional because it treats a prior
conviction for an aggravated felony as a mere sentencing factor
and not an element of the offense. Cedillo concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523
*
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that this opinion should not be published and is not precedent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. 02-50264
-2-
U.S. 224 (1998), but he nevertheless seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000).
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), cert. denied, 531 U.S. 1202 (2001). Cedillo’s
argument is foreclosed. Therefore, Cedillo’s conviction and
sentence are AFFIRMED.