IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50646
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ENRIQUE AGUILERA-MATA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-328-ALL-PRM
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Enrique Aguilera-Mata appeals the sentence imposed following
his guilty plea conviction of being found in the United States
after removal 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). Aguilera-
Mata complains that his sentence was improperly enhanced pursuant
to 8 U.S.C. § 1326(b)(2) based on his prior removal following an
aggravated felony conviction. He argues that the sentencing
provision is unconstitutional. Alternatively, Aguilera-Mata
*
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that this opinion should not be published and is not precedent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. 02-50646
-2-
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.
Aguilera-Mata 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 an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.