United States v. Delmoral

* 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this opinion should not be published and is not precedent except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
November 9, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40471
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCOS ANTONIO DELMORAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-109-ALL
--------------------
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Marcos Antonio Delmoral appeals from the sentence imposed
following his guilty plea to illegal reentry into the United
States following deportation. See 8 U.S.C. § 1326. He argues
that the “felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). He concedes that his challenge
is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998), and he raises it to preserve it for further
review by the Supreme Court.

-- 1 of 2 --

No. 05-40471
- 2 -
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 therefore 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).
AFFIRMED.

-- 2 of 2 --