United States v. Medrano-Nunez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-41262
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOE MEDRANO-NUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-452-ALL
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Noe Medrano-Nunez appeals his conviction and sentence for
illegal reentry. He argues that his conviction for unauthorized
use of a motor vehicle was not an “aggravated felony” and
therefore did not warrant an eight-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(C); and that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1) & (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000).
*
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that this opinion should not be published and is not precedent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.
No. 02-41262
-2-
Medrano concedes that these arguments are foreclosed, and he
seeks only to preserve their further review by the Supreme Court.
The issue whether Medrano properly received an eight-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) is foreclosed by
United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.
1999), which held that the offense of unauthorized use of a motor
vehicle is a crime of violence within the intendment of 18 U.S.C.
§ 16. We are bound by this court’s precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. See United States v. Short, 181 F.3d 620, 624 (5th Cir.
1999).
Medrano’s Apprendi 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.