United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 02-41239
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CASTRO-RIVERA, also known
as Jose Rivera-Castro,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-127-1
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Castro-Rivera 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. Castro-
Rivera 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 been alleged in
*
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that this opinion should not be published and is not precedent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. 02-41239
-2-
his indictment. Castro-Rivera 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 maximum term
of imprisonment and supervised release 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.
Castro-Rivera 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.