United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 23, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40250
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MAGDALENO SANCHEZ-LOPEZ
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1133-ALL
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Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Magdaleno Sanchez-Lopez pleaded guilty to one count of
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. The district court sentenced Sanchez-Lopez to 24 months
of imprisonment and three years of supervised release.
Sanchez-Lopez argues that 8 U.S.C. § 1326(b) is
unconstitutional. In Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), the Supreme Court held that the enhanced
*
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that this opinion should not be published and is not precedent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. 03-40250
-2-
penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not
elements of separate offenses. Sanchez-Lopez concedes that his
argument is foreclosed by Almendarez-Torres, but he 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 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). This issue is without merit.
Sanchez-Lopez also argues that there is a conflict between
the written and oral judgments. The written judgment contains a
condition of supervised release prohibiting the possession of a
dangerous weapon; the oral pronouncement of sentence did not
mention this provision. For the reasons outlined in United
States v. Torres-Aguilar, __ F.3d __ (5th Cir. Dec. 3, 2003,
No. 03-40055), we conclude that the district court’s omission of
the dangerous weapon prohibition during the oral pronouncement of
sentence did not create a conflict with the sentence set forth in
the judgment.
AFFIRMED.