United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-41141
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FEDERICO GARCIA-HERNANDEZ, also
known as Jose Alfredo Trevino-Guzman,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-392-ALL
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Federico Garcia-Hernandez 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.
Garcia-Hernandez 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 offense under 8 U.S.C. § 1326(b) that should have
*
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that this opinion should not be published and is not precedent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. 02-41141
-2-
been alleged in his indictment. Garcia-Hernandez 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.
Garcia-Hernandez 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.