IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50920
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUCIANO DEL VAL PAYAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-250-01-FB
--------------------
April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Luciano Del Val Payan appeals the sentence imposed following
his guilty plea conviction of attempting to illegally reenter the
United States after deportation in violation of 8 U.S.C. § 1326.
He contends that the sentence is invalid because it exceeds the
two-year maximum term of imprisonment prescribed in 8 U.S.C.
§ 1326(a). Del Val Payan complains that his sentence was
improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on
his prior deportation following an aggravated felony conviction.
He argues that the sentencing provision violates the Due Process
*
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that this opinion should not be published and is not precedent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. 01-50920
-2-
Clause. Alternatively, Del Val Payan 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 was an element of the offense under 8 U.S.C.
§ 1326(b)(2) that should have been alleged in his indictment.
With certain exceptions not relevant in this case, Del Val
Payan waived the right to appeal his “guilty plea, any sentence
imposed within the maximum provided in the statute of conviction,
the application of the Guidelines or [his] conviction on any
ground[.]” Del Val Payan contends that the waiver-of-appeal
provision has no effect on his appeal because his sentence
exceeded the statutory maximum term of imprisonment prescribed in
8 U.S.C. § 1326(a). The Government has not filed a brief in this
case and has not requested that the waiver-of-appeal provision be
enforced. Even if Del Val Payan’s arguments are not precluded by
his waiver-of-appeal provision, they are foreclosed.
Accordingly, we pretermit consideration of the waiver issue.
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.
Del Val Payan acknowledges that his arguments are 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 arguments for further review.
No. 01-50920
-3-
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.