United States v. Arzola-Juarez

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. 03-51077 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FELIPE ARZOLA-JUAREZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-03-CR-1011-ALL-PR -------------------- Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges. PER CURIAM:* Felipe Arzola-Juarez 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. Arzola-Juarez complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b) based on a prior conviction. He argues that the sentencing provision is unconstitutional. Arzola-Juarez thus contends that his sentence should not exceed * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-51077 -2- the maximum terms of imprisonment and supervised release 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. Arzola-Juarez 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). 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.