IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20118
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER AGUILAR-DOZAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-650
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Javier Aguilar-Dozal appeals the sentence imposed
following his conviction of being found in the United States
after deportation in violation of 8 U.S.C. § 1326. Aguilar-Dozal
raises two issues on appeal: (1) that the sentencing provisions
in 8 U.S.C. § 1326(b) are unconstitutional on their face and as
applied in his case and (2) that the district court should have
suppressed the evidence of his prior administrative deportation
*
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this opinion should not be published and is not precedent except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. 02-20118
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because he was deprived of due process during his 8 U.S.C. § 1228
administrative deportation proceeding. Aguilar-Dozal concedes
that his arguments are foreclosed by this court’s precedent. He
raises the issues to preserve them for Supreme Court review.
In Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998), the Supreme Court held that the sentencing provisions in
8 U.S.C. § 1326(b) do not violate the Due Process Clause.
Contrary to Aguilar-Dozal’s suggestion, that decision was not
overruled by Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000).
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
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). Aguilar-Dozal’s
argument that the sentencing provisions in 8 U.S.C. § 1326(b) are
unconstitutional is indeed foreclosed.
In United States v. Benitez-Villafuerte, 186 F.3d 651, 656-
60 (5th Cir. 1999), this court held that the administrative
deportation procedures set forth in 8 U.S.C. § 1228 comport with
due process and that evidence of such deportation proceedings is
admissible in a subsequent criminal prosecution under 8 U.S.C.
§ 1326. We are bound by this court's precedent absent an
intervening Supreme Court decision or a subsequent en banc
decision. See United States v. Short, 181 F.3d 620, 624 (5th
Cir. 1999). No such decision overruling Benitez-Villafuerte
exists. Aguilar-Dozal’s argument that the district court should
No. 02-20118
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have suppressed the evidence of his prior administrative
deportation is also foreclosed.
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. The
judgment of the district court is AFFIRMED.
MOTION GRANTED; AFFIRMED.