United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41429
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS CANDANOZA-RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-393-ALL
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Carlos Candanoza-Ruiz appeals his guilty-plea
conviction and sentence for violating 8 U.S.C. § 1326(a) and (b)
by entering the United States, without permission, following both
his conviction for an aggravated felony and subsequent
deportation.
For the first time on appeal, Candanoza argues that 8 U.S.C.
§ 1326(b) is unconstitutional because it treats a prior
conviction for a felony or aggravated felony as a sentencing
*
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this opinion should not be published and is not precedent except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. 03-41429
-2-
factor and not as an element of the offense. He asks us to
vacate his conviction and sentence, reform the judgment to
reflect a conviction only under 8 U.S.C. § 1326(a), and remand
his case for resentencing.
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. Candanoza acknowledges that his argument is
foreclosed by Almendarez-Torres, but he 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.