United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 24, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-40984
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO ANDRADE-REYES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-68-1
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Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Fernando Andrade-Reyes 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.
Andrade contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)
are unconstitutional. He argues that the prior conviction that
resulted in his increased sentence is an element of a separate
*
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that this opinion should not be published and is not precedent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. 02-40984
-2-
offense under 8 U.S.C. § 1326(b) that should have been alleged in
his indictment. Andrade maintains that he pleaded guilty to an
indictment 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.
Andrade 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.