IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50922
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR ZAMUDIO-HINOJOSA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1130-ALL-EP
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Victor Zamudio-Hinojosa appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after removal in violation of 8 U.S.C. § 1326. Zamudio-
Hinojosa argues that his sentence should not have been enhanced
pursuant to 8 U.S.C. § 1326(b)(2) based on his prior removal
following an aggravated felony conviction. He asserts that
8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define separate
offenses and that an aggravated felony conviction is an element
of the offense under 8 U.S.C. § 1326(b)(2). Zamudio-Hinojosa
*
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that this opinion should not be published and is not precedent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. 01-50922
-2-
states that he pleaded guilty to an indictment which charged
simple reentry under 8 U.S.C. § 1326(a). He argues that his
sentence exceeds the two-year maximum term of imprisonment which
may be imposed for that offense.
In Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998), the Supreme Court held that the enhanced penalties in
8 U.S.C. § 1326(b) are sentencing provisions, not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Zamudio-Hinojosa acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the validity of that decision
has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). Zamudio-Hinojosa seeks to preserve his 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), cert. denied, 531 U.S. 1202 (2001). 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). The judgment of
the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.