IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51140
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RICARDO CASAREZ-DOMINGUEZ,
also known as Ricardo Beltran-Dominguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-01-CR-270-ALL
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June 19, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Juan Ricardo Casarez-Dominguez appeals the sentence imposed
following his guilty plea conviction of being found in 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). Casarez-Dominguez 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.
*
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that this opinion should not be published and is not precedent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. 01-51140
-2-
He argues that the sentencing provision violates the Due Process
Clause. Alternatively, Casarez-Dominguez contends that 8 U.S.C.
§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses. He
argues that his indictment failed to allege an element of the
offense under 8 U.S.C. § 1326(b)(2) -- that he had been convicted
of an aggravated felony, punishable by a sentence of at least one
year.
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.
Casarez-Dominguez 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.
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.
No. 01-51140
-3-
AFFIRMED; MOTION GRANTED.