IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50174
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM DE JESUS GALLARDO-MORENTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-361-ALL
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
William De Jesus Gallardo-Morente 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). Gallardo-Morente 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
*
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that this opinion should not be published and is not precedent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. 02-50174
-2-
Due Process Clause. Alternatively, Gallardo-Morente 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.
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.
Gallardo-Morente 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.
AFFIRMED; MOTION GRANTED.