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. 03-10944
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLOR MARIA ZARATE-RAMIREZ, also
known as Flor Maria Zarate,
Defendant-Appellant.
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Appeal from the United States District Court
for the Norhern District of Texas
USDC No. 3:03-CR-74-ALL-L
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Flor Maria Zarate-Ramirez 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.
Zarate-Ramirez 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 been alleged in her
indictment. She maintains that she pleaded guilty to an
*
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that this opinion should not be published and is not precedent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. 03-10944
-2-
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.
Zarate-Ramirez 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.