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. 03-40994
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO CESAR MONTEIRO-DE OLIVEIRA,
Defendant-Appellant,
Consolidate With
No. 03-40999
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO MONTEIRO-DE OLIVEIRA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-285-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
No. 03-40994 c/w
No. 03-40999
-2-
Fernando Cesar Monteiro-De Oliveira 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. Monteiro-De Oliveira 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 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.
Monteiro-De Oliveira 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
R. 47.5.4.
No. 03-40994 c/w
No. 03-40999
-3-
“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.