United States v. Ortiz-Duartes

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004 Charles R. Fulbruge III Clerk No. 03-11304 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FERNANDO ORTIZ-DUARTES, also known as Eduardo Ramos-Lira, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:02-CR-107-ALL-C -------------------- Before JOLLY, JONES, and SMITH, Circuit Judges. PER CURIAM:* Fernando Ortiz-Duartes 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. Ortiz-Duartes argues that the prior conviction that resulted in his increased sentence is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-11304 -2- indictment. He argues that his sentence exceeds the term of imprisonment which may be imposed under 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. Ortiz-Duartes acknowledges that his argument is foreclosed by Almendarez-Torres, but asserts that the decision has been cast into doubt by subsequent Supreme Court decisions, including 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.