United States Court of Appeals
Fifth Circuit
F I L E D
April 24, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11119
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO ISMAEL CORONA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:02-CR-6-ALL-C
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Francisco Ismael Corona-Martinez 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. Corona-Martinez 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 is an element of a separate offense under 8 U.S.C.
§ 1326(b) that should have been alleged in his indictment.
Corona-Martinez maintains that he pleaded guilty to an indictment
*
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that this opinion should not be published and is not precedent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. 02-11119
-2-
which charged only simple reentry under 8 U.S.C. § 1326(a). He
argues that his sentence exceeds the two-year maximum term of
imprisonment which may be imposed for that offense.
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.
Corona-Martinez 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). 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.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.