United States v. Marquez-Conde

* 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that this opinion should not be published and is not precedent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. 03-40917
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTEBAN MARQUEZ-CONDE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-225-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Esteban Marquez-Conde appeals the sentence imposed following
his guilty-plea conviction for being found in the United States
after deportation in violation of 8 U.S.C. § 1326. Marquez-Conde
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. Marquez-
Conde concedes that this argument is foreclosed by

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No. 03-40917
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Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and
he raises it for possible review by the Supreme Court.
Marquez-Conde’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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