IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50508
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTEBAN MARQUEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-10-1-SS
--------------------
October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Esteban Marquez 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. Marquez 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. Marquez 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 which increased the statutory maximum
*
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that this opinion should not be published and is not precedent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. 02-50508
-2-
sentence to which he otherwise would have been exposed. Marquez
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.
Marquez 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 an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.