United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-50582
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRENDA YANEZ-GONZALEZ, also known
as Brenda Gonzalez-Yanez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-323-ALL-PRM
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Brenda Yanez-Gonzalez appeals the sentence imposed following
her guilty plea conviction of being found in the United States
after deportation/removal in violation of 8 U.S.C. § 1326.
Yanez-Gonzalez contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b) define separate offenses. She argues that the prior
conviction that resulted in her 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that this opinion should not be published and is not precedent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. 03-50582
-2-
been alleged in her indictment. Yanez-Gonzalez maintains that
she pleaded guilty to an indictment which charged only simple
reentry under 8 U.S.C. § 1326(a). She argues that her 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.
Yanez-Gonzalez acknowledges that her argument is 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).
She seeks to preserve her 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). 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.