United States v. Apaez-Leyva ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50458
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CATARINO APAEZ-LEYVA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1977-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Catarino Apaez-Leyva appeals the sentence imposed following
his guilty plea conviction of attempting to illegally reenter the
United States after 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). Apaez-Leyva complains that his sentence was
improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on
his prior removal following an aggravated felony conviction. 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that this opinion should not be published and is not precedent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. 02-50458
-2-
Alternatively, Apaez-Leyva contends that 8 U.S.C. § 1326(a) and
8 U.S.C. § 1326(b)(2) define separate offenses. He argues that
the aggravated felony conviction that resulted in his increased
sentence was an element of the offense under 8 U.S.C.
§ 1326(b)(2) 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.
Apaez-Leyva 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), cert. denied, 531 U.S. 1202 (2001). 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.