United States v. Aciain-Porras

* 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that this opinion should not be published and is not precedent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
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41133
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER ACIAIN-PORRAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-68-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Francisco Javier Aciain-Porras appeals from his guilty-plea
conviction for being illegally present in the United States
following a previous deportation. For the first time on appeal,
Aciain-Porras argues that 8 U.S.C. § 1326(b) is unconstitutional
on its face and as applied in his case because it does not
require the fact of a prior felony or aggravated felony
conviction to be charged in the indictment and proved beyond a
reasonable doubt. He thus contends that his sentence is invalid

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No. 03-41133
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and argues that it should not exceed the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a).
Aciain-Porras acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his
argument for further 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 marks and citation omitted).
Accordingly, as Aciain-Porras’s sole argument on appeal is
foreclosed, the district court’s judgment is AFFIRMED.

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