United States v. Mendoza-Aguilar

* 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that this opinion should not be published and is not precedent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. 03-41286
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO MENDOZA-AGUILAR, also known as Gerardo
Aguilar-Guzman,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-391-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Gerardo Mendoza-Aguilar (“Mendoza”) appeals his guilty-plea
conviction for illegal re-entry following deportation. Mendoza
argues that 8 U.S.C. § 1326(b) is unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Mendoza argues
that, after Apprendi, it is apparent that a majority of the
Supreme Court now feels that Almendarez-Torres v. United States,
523 U.S. 224 (1998), was incorrectly decided. He acknowledges

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No. 03-41286
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that his argument is foreclosed by circuit precedent, but he
raises this issue to preserve it for possible review by the
Supreme Court. Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000). Therefore, Mendoza’s argument
is foreclosed.
AFFIRMED.

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