IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50308
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO RODRIGUEZ-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-2099-ALL-EP
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Gerardo Rodriguez-Rodriguez 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.
Rodriguez-Rodriguez 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.
Rodriguez-Rodriguez argues that the sentencing provision violates
the Due Process Clause because it permitted the sentencing judge
to find, under a preponderance of the evidence standard, a fact
*
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that this opinion should not be published and is not precedent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. 02-50308
-2-
which increased the statutory maximum sentence to which he
otherwise would have been exposed. Rodriguez-Rodriguez 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.
Rodriguez-Rodriguez 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.