United States v. Salinas-Romo

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41751
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE OSVALDO SALINAS-ROMO,
Defendant-Appellant,
Consolidated with
No. 03-40007
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE OSBALDO SALINAS-ROMO, also known as Arnoldo Guzman-Romo,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-413-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*

-- 1 of 2 --

No. 02-41751
c/w No. 03-40007
-2-
R. 47.5.4.
Rene Osvaldo Salinas-Romo appeals his guilty-plea conviction
and sentence for being found illegally present in the United
States after deportation as well as the subsequent revocation of
a term of supervised release from an earlier conviction. He
argues, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are elements of the offense, not sentence
enhancements, making those provisions unconstitutional. Salinas
concedes that this argument is foreclosed and he raises it for
possible review by the Supreme Court.
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998). We must follow the precedent
set in Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000) (internal quotation and citation
omitted).
AFFIRMED.

-- 2 of 2 --