United States v. Almanza-Tapia

* 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that this opinion should not be published and is not precedent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. 03-41376
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEVERIANO ALMANZA-TAPIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-395-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Severiano Almanza-Tapia pleaded guilty to a charge of being
present illegally in the United States subsequent to deportation
and a conviction for an aggravated felony, a violation of
8 U.S.C. § 1326. The district court sentenced him to sixty-three
months of imprisonment and three years of supervised release.
Almanza-Tapia contends that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b) are unconstitutional. He
acknowledges that his argument is foreclosed by Almendarez-Torres

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No. 03-41376
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v. United States, 523 U.S. 224, 235 (1998), but he asserts that
Almendarez-Torres 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). We 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, the judgment of the district court is
AFFIRMED.

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