United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 02-41697
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE EFRAIN GARCIA-LUNA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-340-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jose Efrain Garcia-Luna appeals from his guilty-plea
conviction for being found illegally in the United States
following a previous deportation. Garcia-Luna was sentenced to a
term of imprisonment of 46 months to be followed by a three-year
term of supervised release.
Garcia-Luna argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1), (b)(2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). He also
argues that his indictment was defective because it did not
*
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that this opinion should not be published and is not precedent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. 02-41697
-2-
charge his prior aggravated felony conviction as an element of
the 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, and not elements of
separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Garcia-Luna acknowledges that these arguments are foreclosed
by Almendarez-Torres, but he asserts that the decision has been
cast into doubt by Apprendi, 530 U.S. at 490. He seeks to
preserve these 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). Accordingly, these arguments are foreclosed.
Garcia-Luna also argues that the special written condition
of supervised release prohibiting him from possessing a
“dangerous weapon” must be stricken from the judgment of
conviction because that condition was not orally pronounced at
sentencing. His argument is foreclosed by this court’s opinion
in United States v. Torres-Aguilar, 352 F.3d 934, 937-38
(5th Cir. 2003).
AFFIRMED.