United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-40308
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO ZAMORA-ANAYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-920-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Alfonso Zamora-Anaya appeals the sentence imposed following
his guilty plea to illegal reentry into the United States
following deportation. Zamora was sentenced to a term of
imprisonment of 46 months to be followed by a three-year term of
supervised release.
Zamora argues that in light of Apprendi v. New Jersey,
530 U.S. 466 (2000), it appears that Almendarez-Torres v. United
States, 523 U.S. 224 (1998), was incorrectly decided and that,
therefore, the sentencing provisions of 8 U.S.C. § 1326(b) are
*
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this opinion should not be published and is not precedent except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. 04-40308
-2-
unconstitutional. He contends that the unconstitutional portions
of the statute should be severed and that he should be
resentenced to no more than two years of imprisonment for the
lesser included offense provided under 8 U.S.C. § 1326(a).
Zamora recognizes that his argument is foreclosed by the existing
precedent of the Supreme Court and this court; however, he wishes
to preserve the issue for possible Supreme Court review.
Almendarez-Torres held that the enhanced penalties contained
in 8 U.S.C. § 1326(b) were sentencing factors and not elements of
the offense. 523 U.S. at 235. 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 the precedent set in Almendarez-Torres unless the
Supreme Court overrules it. Dabeit, 231 F.3d at 984. Zamora’s
challenge to the constitutionality of 8 U.S.C. § 1326(b) is
without merit.
AFFIRMED.