United States v. Perez-Avalos

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40780
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMADO PEREZ-AVALOS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-14-ALL
--------------------
December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Amado Perez-Avalos appeals the 30-month sentence imposed
following his guilty plea to a charge of illegal re-entry after
having been deported following an aggravated felony conviction
in violation of 8 U.S.C. § 1326. Perez-Avalos argues that the
sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). He concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

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No. 02-40780
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seeks to preserve the issue 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 and citation omitted).
AFFIRMED.

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