United States v. Rodriguez

* 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that this opinion should not be published and is not precedent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
August 20, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40148
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SIXTO RODRIGUEZ RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-468-1
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Sixto Rodriguez Rodriguez appeals his guilty plea conviction
for illegal reentry into the United States following deportation.
He argues that 8 U.S.C. 1326(b), the statute under which he was
convicted and sentenced, is unconstitutional on its face and as
applied in his case in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). However, Rodriguez concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

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No. 03-40148
-2-
(1998), but wishes to preserve the issue for further 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). This court therefore must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation and citation omitted). Rodriguez’s argument is without
merit.
AFFIRMED.

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