United States v. Perea-De Jara

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41420
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA ISABEL PEREA-DE JARA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-120-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Maria Isabel Perea-De Jara appeals from her guilty-plea
conviction for attempting to illegally reenter the United States
after being previously deported subsequent to an aggravated
felony conviction. For the first time on appeal, Perea-De Jara
argues that 8 U.S.C. § 1326(b) is unconstitutional on its face
and as applied in her case because it does not require the fact
of a prior felony or aggravated felony conviction to be charged
in the indictment and proved beyond a reasonable doubt. She thus
United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk

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No. 03-41420
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contends that her sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a).
Perea-De Jara acknowledges that her argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
asserts that the decision has been cast into doubt by Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). She seeks to preserve her
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).
Accordingly, as Perea-De Jara’s sole argument on appeal is
foreclosed, the district court’s judgment is AFFIRMED.

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