USA vs. Hernandez-Navarro, (5th Cir. 2004)

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United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS

April 21, 2004

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 03-41198

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FILIBERTO HERNANDEZ-NAVARRO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-03-CR-246-1

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:* Filiberto Hernandez-Navarro appeals his guilty-plea conviction and sentence for being found illegally present in the United States after deportation. He argues, pursuant to Apprendi v. New Jersey,530 U.S. 466 (2000), that the "felony" and "aggravated felony" provisions of 8 U.S.C. § 1326(b) are elements of the offense, not sentence enhancements, making those provisions unconstitutional. Hernandez concedes that this argument is foreclosed and he raises it for possible review by the Supreme Court. This argument is foreclosed by Almendarez-Torres v. United States,523 U.S. 224, 235 (1998). We must follow the precedent set in Almendarez-Torres "unless 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).

AFFIRMED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set for in 5TH CIR. R. 47.5.4.

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