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
No. 02-41631 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO CERVANTES-SARMIENTO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-751-ALL
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rodolfo Cervantes-Sarmiento appeals his guilty-plea
conviction and sentence for being found in the United States,
without permission, following deportation, in violation of
8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal,
Cervantes-Sarmiento argues that 8 U.S.C. § 1326(b) is
unconstitutional on its face and as applied in his case because
it treats a prior conviction for a felony or aggravated felony as
a sentencing factor and not as an element of the offense. He
*
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that this opinion should not be published and is not precedent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. 02-41631
-2-
contends that the unconstitutional portion of 8 U.S.C. § 1326
should be severed from the statute. He asks us to vacate his
conviction and sentence, reform the judgment to reflect a
conviction only under 8 U.S.C. § 1326(a), and remand his case for
resentencing under that provision.
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.
Cervantes-Sarmiento acknowledges that his argument is foreclosed
by Almendarez-Torres, but asserts that the decision has been
called into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90
(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). Accordingly, the district court did not err
in sentencing Cervantes-Sarmiento under 8 U.S.C. § 1326(b)(1).
The judgment of the district court is AFFIRMED.