United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41710
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN PABLO ROLDAN-CERVANTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1046-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Pablo Roldan-Cervantes (“Roldan”) appeals his sentence
following his guilty-plea conviction for illegal reentry into the
United States after deportation in violation of 8 U.S.C. § 1326.
Roldan argues that the sentencing provisions of 8 U.S.C.
§ 1326(b) are unconstitutional. Roldan acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), but he seeks to preserve his argument
*
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that this opinion should not be published and is not precedent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. 02-41710
-2-
for further review in light of Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). 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, Roldan’s
sentence cannot be vacated on this ground.
The parties agree, and the record reflects, that the
district court did not provide the 35 day period allowed under
FED. R. CRIM. P. 32(e)(2) (formerly FED. R. CRIM. P. 32(b)(6)(A)
(2002)) to review the presentence report prior to sentencing.
The parties also agree that the appropriate remedy is for this
court to vacate the sentence and remand to the district court for
resentencing. Therefore, we VACATE his sentence on this ground
and REMAND to the district court for resentencing.
VACATED and REMANDED.