IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50737
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO DE LA FUENTE-DE LA FUENTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-01-CR-639-1-WWJ
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February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rogelio De La Fuente-De La Fuenta appeals the sentence
imposed following his guilty plea conviction of being found in
the United States after deportation/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). De La Fuente-De La Fuenta
complains that his sentence was improperly enhanced pursuant to
8 U.S.C. § 1326(b). He argues that the sentencing provision is
unconstitutional. Alternatively, De La Fuente-De La Fuenta
*
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that this opinion should not be published and is not precedent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. 02-50737
-2-
contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) define
separate offenses. He argues that the prior conviction that
resulted in his increased sentence was an element of a separate
offense under 8 U.S.C. § 1326(b) 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.
De La Fuente-De La Fuenta 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). 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.