United States v. Garcia-Apolonia , 87 F. App'x 401 ( 2004 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                  February 18, 2004
    Charles R. Fulbruge III
    Clerk
    No. 03-51265
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ADOLFO GARCIA-CASTRO, also known
    as Roberto Sosa-Castro,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. EP-03-CR-1250-1-PRM
    --------------------
    Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
    PER CURIAM:*
    Adolfo Garcia-Castro 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
    .
    Garcia-Castro 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 is an element
    of a separate offense under 
    8 U.S.C. § 1326
    (b) that should have
    *
    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    that this opinion should not be published and is not precedent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. 03-51265
    -2-
    been alleged in his indictment.    Garcia-Castro maintains that he
    pleaded guilty to an indictment which charged only simple reentry
    under 
    8 U.S.C. § 1326
    (a).    He argues that his sentence exceeds
    the two-year maximum term of imprisonment which may be imposed
    for that offense.
    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
    .
    Garcia-Castro acknowledges that his argument is 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 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).    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: 03-51265

Citation Numbers: 87 F. App'x 401

Judges: Emilio, Garza, Higginbotham, Per Curiam, Prado

Filed Date: 2/17/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023