United States v. Ramirez-Hareo

* 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that this opinion should not be published and is not precedent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. 03-41290
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RAMIREZ-HAREO, also known as
Jose Ilario Ramirez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-473-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Jose Ramirez-Hareo appeals his conviction and sentence for
being an alien unlawfully found in the United States after
deportation after having been convicted of an aggravated felony
in violation of 8 U.S.C. § 1326(a) & (b). For the first time on
appeal, Ramirez-Hareo 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

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No. 03-41290
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felony conviction to be charged in the indictment and proved
beyond a reasonable doubt.
Ramirez-Hareo acknowledges that his arguments are foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he wishes to preserve the issues for Supreme Court review in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). 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). Thus, 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, Ramirez-Hareo’s arguments are foreclosed, and
his conviction and sentence are AFFIRMED.

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