United States v. Narvaez

* 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this opinion should not be published and is not precedent except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
August 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41728
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE NARVAEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:04-CR-597-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Narvaez appeals his sentence under 8 U.S.C. § 1326(a)
and (b) for illegal reentry into the United States after having
been deported after conviction for an aggravated felony. Narvaez
asserts for the first time on appeal that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b) are
unconstitutional. The Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
controls this issue. We must follow Almendarez-Torres “unless

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No. 04-41728
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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). Thus, this issue is
foreclosed.
The district court’s judgment is AFFIRMED.

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