United States v. Flores-Benitez

* 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that this opinion should not be published and is not precedent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
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40293
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN STEVEN FLORES-BENITEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1134-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Marvin Steven Flores-Benitez appeals the sentence he
received following his guilty-plea conviction for illegally
reentering the United States after deportation subsequent to an
aggravated felony conviction, in violation of 8 U.S.C. § 1326.
He argues, for the first time on appeal, that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). He concedes that this argument is foreclosed by

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No. 03-40293
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Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). This court must follow the precedent set in
Almendarez-Torres "unless and until the Supreme Court itself
determines to overrule it." Dabeit, 231 F.3d at 984 (internal
quotation and citation omitted).
AFFIRMED.

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