United States v. Ramos

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-10325 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RUBEN RAMOS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-281-1-L -------------------- April 11, 2002 Before SMITH, DeMOSS, and PARKER, Circuit Judges. PER CURIAM:* Ruben Ramos 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. Ramos contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses. He argues that the aggravated felony conviction that resulted in his increased sentence is an element of the offense under 8 U.S.C. § 1326(b)(2) that should have been alleged in his indictment. Ramos maintains that he pleaded guilty to an indictment which charged only simple reentry under 8 U.S.C. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10325 -2- § 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. Ramos acknowledges that his argument is foreclosed by Almendarez-Torres, but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He 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. In lieu of filing an appellee’s brief, the Government has filed a motion asking this court to dismiss this appeal or, in the alternative, to summarily affirm the district court’s judgment. The Government’s motion to dismiss is DENIED. The motion for a summary affirmance is GRANTED. The Government need not file an appellee’s brief. AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED.