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. 03-40002 Clerk
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC MANUEL RAMOS-RUBIO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-02-CR-529-1
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Isaac Manuel Ramos-Rubio appeals his guilty-plea conviction
and sentence for violating 8 U.S.C. § 1326(a) and (b) by entering
the United States, without permission, following both his
conviction for an aggravated felony and subsequent deportation.
Ramos-Rubio contends that 8 U.S.C. § 1326(b) is unconstitutional
because it treats a prior conviction for a felony or aggravated
felony as a sentencing factor and not as an element of the
offense. Alternatively, Ramos-Rubio contends that 8 U.S.C.
*
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that this opinion should not be published and is not precedent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. 03-40002
-2-
§ 1326(a) and 8 U.S.C. § 1326(b) define separate offenses. He
argues that the prior conviction that resulted in his increased
sentence was an element of a separate offense under 8 U.S.C.
§ 1326(b) that should have been alleged in his indictment.
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.
Ramos-Rubio 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).
AFFIRMED.