United States v. Contreras-Perez

* 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that this opinion should not be published and is not precedent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. 03-40685
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO CONTRERAS-PEREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1416-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Benito Contreras-Perez (Contreras) appeals his guilty-plea
conviction and sentence for illegal reentry following a prior
deportation. He asserts that the sentence-enhancing provisions
contained in 8 U.S.C. § 1326(b) are facially unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Contreras
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but seeks to preserve the
issue for further review.

-- 1 of 2 --

No. 03-40685
-2-
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 Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The judgment of the district court is
AFFIRMED.

-- 2 of 2 --