United States v. Garcia-Perez

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-21176 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALFONSO GARCIA-PEREZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-169-ALL -------------------- December 12, 2002 Before JOLLY, JONES, and CLEMENT, Circuit Judges. PER CURIAM:* Alfonso Garcia-Perez appeals his guilty plea conviction and sentence for being found in the United States after deportation in violation of 8 U.S.C. § 1326. Garcia argues that the sentencing provisions in 8 U.S.C. § 1326(b)(1) and (b)(2) 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21176 -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. Alternatively, he asks us to simply vacate his sentence and remand his case for resentencing under 8 U.S.C. § 1326(a). Garcia acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he 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.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). Accordingly, the judgment of the district court is AFFIRMED.