United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS August 18, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40110
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO ISRAEL ZACARIAS-CARBAJAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-838-1
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Hugo Israel Zacarias-Carbajal appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation in violation of 8 U.S.C. § 1326.
Zacarias-Carbajal 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. § 1326(a), his judgment must be reformed to reflect a
*
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this opinion should not be published and is not precedent except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. 04-40110
-2-
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.
Zacarias-Carbajal acknowledges that his arguments are 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 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
"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.