IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51204
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO CORNEJO-CANALES,
also known as Fransisco Cornejo-Canales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-63-1-WWJ
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August 22, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Francisco Cornejo-Canales 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.
Cornejo-Canales 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. Cornejo-
Canales argues that the sentencing provision violates the Due
Process Clause because it permitted the sentencing judge to find,
*
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that this opinion should not be published and is not precedent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. 01-51204
-2-
under a preponderance of the evidence standard, a fact which
increased the statutory maximum sentence to which he otherwise
would have been exposed. Cornejo-Canales thus contends that his
sentence is invalid and argues that it should not exceed the
two-year maximum term of imprisonment prescribed in 8 U.S.C.
§ 1326(a).
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.
Cornejo-Canales 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.
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.