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. 03-41023
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO LOPEZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-346-ALL
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Gilberto Lopez-Martinez appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Lopez-Martinez contends that the “felony” and “aggravated felony”
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.
He therefore argues that his conviction must be reduced to one
under the lesser included offense found in 8 U.S.C. § 1362(a),
his judgment must be reformed to reflect a conviction only under
*
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that this opinion should not be published and is not precedent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. 03-41023
-2-
that provision, and his sentence must be vacated and the case
remanded for resentencing to no more than two years’ imprisonment
and one year of supervised release.
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.
Lopez-Martinez acknowledges that his arguments are 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 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). 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.