United States v. Jimenez-Vargas

* 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that this opinion should not be published and is not precedent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
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20200
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY JIMENEZ-VARGAS,
also known as Nelson Hernandez,
also known as Anthony Delgado,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-538-ALL
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Henry Jimenez-Vargas appeals his guilty-plea conviction of
and sentence for illegal reentry following deportation. Jimenez-
Vargas 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.
Jimenez-Vargas concedes that this argument is foreclosed by

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No. 03-20200
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Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he
raises it “for possible direct review by the Supreme Court and to
avoid later accusations of procedural default should the law
change on this question.”
Jimenez-Vargas’s Apprendi argument is foreclosed by
Almendarez-Torres, 523 U.S. at 235. 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.

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