United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41180 c/w
No. 03-41195
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO URIBE-JIMENEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-299-1
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Fernando Uribe-Jimenez (Uribe) appeals his guilty-plea
convictions of transporting an illegal alien and illegal reentry
into the United States after having been convicted of an aggravated
felony and deported. The pleas were taken separately. There was
a written plea agreement in the alien-transporting case; there was
no plea agreement in the illegal reentry case. Because the alien
transportation offense is a “specific offense characteristic” of
*
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that this opinion should not be published and is not precedent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.
illegal reentry under U.S.S.G. § 2L1.2(b)(1)(A), the offenses were
grouped pursuant to U.S.S.G. § 3D1.2(c), and the sentence was based
on the guidelines for illegal-reentry.
Uribe contends that the Government breached the written plea
agreement by not orally recommending a downward departure for
Uribe’s early cooperation. Absent any objection in the district
court, we review for plain error only. See United States v.
Reeves, 255 F.3d 208, 210 (5th Cir. 2001). The inclusion of the
Government’s recommendation in the Presentence Report fulfilled the
Government’s plea-agreement obligation to recommend a downward
departure for that offense. See United States v. Cates, 952 F.2d
149, 153 (5th Cir. 1992). Moreover, a downward departure as
promised in the alien-transporting case would not have affected
Uribe’s substantial rights because it would have had no effect on
the overall sentence, which was based on the illegal reentry
offense. Uribe shows no plain error.
For the first time on appeal, Uribe argues that 8 U.S.C.
§ 1326(b) is unconstitutional because it does not require the fact
of a prior felony or aggravated felony conviction to be charged in
the indictment and proved beyond a reasonable doubt. He thus
contends that his sentence is invalid and argues that it should not
exceed the two-year maximum term of imprisonment prescribed in 8
U.S.C. § 1326(a).
Uribe acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
2
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).
AFFIRMED.
3