United States v. Rios-Elias

* 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that this opinion should not be published and is not precedent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
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20804
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCO ANTONIO RIOS-ELIAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-675-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Marco Antonio Rios-Elias (Rios) pleaded guilty to an
indictment charging that he was found in the United States after
having been deported and convicted of an aggravated felony.
For the first time on appeal, he argues that 8 U.S.C.
§ 1326(b)(1) and (b)(2) are unconstitutional in light of the
Supreme Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Rios recognizes that relief is presently foreclosed

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No. 03-20804
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in this court, but raises the issue to preserve it for further
review.
Apprendi did not overrule Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See Apprendi, 530 U.S. at 489-90;
see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). This court must therefore 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). The judgment of the district
court is AFFIRMED.

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