United States v. Rodriguez-Lopez

* 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that this opinion should not be published and is not precedent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.
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. 03-20494
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RODRIGUEZ-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-734-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Rodriguez-Lopez appeals his guilty-plea conviction for
illegal reentry into the United States following an aggravated
felony conviction in violation of 8 U.S.C. § 1326. For the
first time on appeal, Rodriguez-Lopez argues that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) & (2) are unconstitutional in
light of the Supreme Court’s holding in Apprendi v. New Jersey,
530 U.S. 466 (2000).

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No. 03-20494
-2-
Rodriguez-Lopez acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he 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). Rodriguez-Lopez’s
argument is foreclosed. The judgment of the district court is
AFFIRMED.

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