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. 03-40828
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN ALCARAZ-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1586-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jaime Alfredo Alcaraz-Rodriguez pleaded guilty to one count
of illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. The district court sentenced Alcaraz-Rodriguez to
85 months of imprisonment and three years of supervised release.
Alcaraz-Rodriguez argues that 8 U.S.C. § 1326(b) is
unconstitutional. 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
*
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that this opinion should not be published and is not precedent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. 03-40828
-2-
provisions, not elements of separate offenses. Alcaraz-Rodriguez
concedes that his argument is foreclosed by Almendarez-Torres,
but he 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). This issue is without merit.
Alcaraz-Rodriguez also argues that there is a conflict
between the written and oral judgments. The written judgment
contains a condition of supervised release prohibiting the
possession of a dangerous weapon; the oral pronouncement of
sentence did not mention this provision. For the reasons
outlined in United States v. Torres-Aguilar, 352 F.3d 934, 935-38
(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.