United States v. Mendoza-Chavira

* 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that this opinion should not be published and is not precedent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
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40462
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENCESLAO MENDOZA-CHAVIRA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-677-1
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Wenceslao Mendoza-Chavira (“Mendoza”) appeals his conviction
and the 41-month sentence imposed following his plea of guilty to
being found in the United States after deportation, in violation
of 8 U.S.C. § 1326. Mendoza argues that the “felony” and
“aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2)
are unconstitutional.
Mendoza 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 Apprendi

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No. 03-40462
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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). The judgment of the district court is
AFFIRMED.
Given the above disposition, we do not decide whether
Mendoza’s appeal is barred by the waiver provision of his plea
agreement.
AFFIRMED.

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