United States v. Medina-Saldana

* 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that this opinion should not be published and is not precedent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. 03-40934
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MEDINA-SALDANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-270-1
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Medina-Saldana appeals the sentence imposed following
entry of his guilty plea to a charge of being found in the United
States after deportation in violation of 8 U.S.C. § 1326. Medina
argues that the sentencing provisions of 8 U.S.C. § 1326(b) are
unconstitutional.
Medina-Saldana acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
but he asserts that the decision has been cast into doubt by

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No. 03-40934
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Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to
preserve his argument 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 Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation and citation
omitted). The judgment of the district court is AFFIRMED.

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