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. 03-40817
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS MERAZ-SANCHEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-167-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Luis Meraz-Sanchez appeals from his guilty-plea conviction
for being found in the United States following a previous
deportation. Meraz-Sanchez argues for the first time on appeal
that 8 U.S.C. § 1326(b)(1) is unconstitutional because it
permitted the sentencing judge to find, under a preponderance of
the evidence standard, a fact that increased the statutory
maximum sentence to which he otherwise would have been exposed.
He thus contends that his sentence is invalid and argues that it
*
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that this opinion should not be published and is not precedent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. 03-40817
-2-
should not exceed the two-year maximum term of imprisonment
prescribed in 8 U.S.C. § 1326(a).
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.
Meraz-Sanchez acknowledges that his 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).
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). Accordingly, Meraz-Sanchez’s first argument
is foreclosed.
Meraz-Sanchez also asserts 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, 935-38 (5th
No. 03-40817
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Cir. 2003), which was issued after Meraz-Sanchez submitted the
instant appeal brief.
Accordingly, the district court’s judgment is AFFIRMED.