IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40079
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MORENO-FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-954-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Roberto Moreno-Flores appeals his guilty plea conviction and
sentence for attempting to illegally reenter the United States
after deportation in violation of 8 U.S.C. § 1326. Moreno-Flores
argues that the sentencing provisions in 8 U.S.C. § 1326(b) are
unconstitutional on their face and as applied in his case. He
contends that the unconstitutional portions of 8 U.S.C. § 1326
should be severed from the statute. He asks us to vacate his
*
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this opinion should not be published and is not precedent except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. 02-40079
-2-
conviction and sentence, reform the judgment to reflect a
conviction only under 8 U.S.C. § 1326(a), and remand his case for
resentencing under that provision.
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.
Moreno-Flores acknowledges that his argument is foreclosed by
Almendarez-Torres, but asserts that the decision has been called
into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90
(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.” Id. at 984 (internal
quotation marks and citation omitted). Accordingly, the judgment
of the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. The Government asks that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.