United States v. Morin-Davila

* 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that this opinion should not be published and is not precedent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. 03-40500
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MORIN-DAVILA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-774-1
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Morin-Davila (“Morin”) appeals his guilty-plea
conviction and sentence for illegal reentry following
deportation. Morin 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. Morin concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

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No. 03-40500
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(1998), and he raises it for possible review by the Supreme
Court.
Morin’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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