United States v. Zelaya-Ulloa

* 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that this opinion should not be published and is not precedent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. 03-40183
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR GUILIAN ZELAYA-ULLOA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-531-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Oscar Guilian Zelaya-Ulloa appeals his conviction and
sentence for illegal reentry. We have jurisdiction over
his appeal. See United States v. Lister, 53 F.3d 66, 68
(5th Cir. 1995).
Zelaya concedes that the issue whether the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1)&(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000) is foreclosed by Almendarez-Torres v. United States,

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No. 03-40183
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523 U.S. 224 (1998), and he raises it solely to preserve its
further review by the Supreme Court. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90. This court
must therefore follow the precedent set in Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000) (internal quotation and citation omitted).
AFFIRMED.

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