United States v. Tiscareno-Reyes ( 2003 )


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  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    April 23, 2003
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
    Clerk
    No. 02-51192
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MIGUEL TISCARENO-REYES,
    also known as Javier Miguel Sanchez-Reyes,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. EP-02-CR-908-ALL-PRM
    --------------------
    Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
    PER CURIAM:*
    Miguel Tiscareno-Reyes 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
    .
    He contends that the sentence is invalid because it exceeds the
    two-year maximum term of imprisonment prescribed in 
    8 U.S.C. § 1326
    (a).     Tiscareno-Reyes complains that his sentence was
    improperly enhanced pursuant to 
    8 U.S.C. § 1326
    (b).       He argues
    that the sentencing provision is unconstitutional.
    *
    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    that this opinion should not be published and is not precedent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. 02-51192
    -2-
    Alternatively, Tiscareno-Reyes contends that 
    8 U.S.C. § 1326
    (a)
    and 
    8 U.S.C. § 1326
    (b) define separate offenses.      He argues that
    the prior conviction that resulted in his increased sentence was
    an element of a separate offense under 
    8 U.S.C. § 1326
    (b) that
    should have been alleged in his indictment.
    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
    .
    Tiscareno-Reyes 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
    “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.
    

Document Info

Docket Number: 02-51192

Filed Date: 4/23/2003

Precedential Status: Non-Precedential

Modified Date: 12/21/2014