United States v. Matute

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40513
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MATUTE, also known as Ruben Dario Reyes-Zapata,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:04-CR-1012-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Matute appeals his guilty-plea conviction
and sentence for being found present in the United States
following deportation without having obtained the consent of the
Attorney General or the Secretary of the Department of Homeland
Security. Matute 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

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No. 05-40513
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unconstitutional. He concedes that this argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
raises it for possible review by the Supreme Court.
“Apprendi did not overrule Almendarez-Torres.” United
States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001); see
Apprendi, 530 U.S. at 489-90. We must follow the precedent set
in Almendarez-Torres unless the Supreme Court itself determines
to overrule it. See Rivera, 265 F.3d at 312.
AFFIRMED.

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