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that this opinion should not be published and is not precedent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
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40822
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT RODRIGUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1772-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Herbert Rodriguez appeals his guilty plea conviction and
sentence for illegal reentry following deportation in violation
of 8 U.S.C. § 1326. He argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Rodriguez
concedes that his argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235, 239-47 (1998). Apprendi did
not overrule Almendarez-Torres. See Apprendi, 530 U.S. at

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No. 03-40822
-2-
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000). Therefore, the judgment of the district court is
AFFIRMED.

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