United States v. Salazar-Gonzalez

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. 03-40446
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR SALAZAR-GONZALEZ,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1150-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Cesar Salazar-Gonzalez (“Salazar”) pleaded guilty to one

count of being found in the United States after deportation

following conviction for an aggravated felony, in violation of

8 U.S.C. § 1326(a) and (b)(2). The district court sentenced

Salazar to 70 months’ imprisonment and three years’ supervised

release.

Salazar argues, for the first time on appeal, that the

sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are

*
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that this opinion should not be published and is not precedent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. 03-40446
-2-

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). He concedes that this argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

seeks to preserve the issue for Supreme Court 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 the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.” Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

Salazar also argues that a conflict exists between the

district court’s oral pronouncement of sentence and the written

judgment because the written judgment contains a condition of

supervised release prohibiting the possession of a dangerous

weapon, but at the sentencing hearing, the court did not mention

this prohibition. For the reasons set forth in United States

v. Torres-Aguilar, 352 F.3d 934, 937-38 (5th Cir. 2003), 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.