United States v. Mendoza-Gallardo ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51050
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR OCTAVIO MENDOZA-GALLARDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-00-CR-278-ALL
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April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Hector Octavio Mendoza-Gallardo was convicted pursuant to a
guilty plea of being found in the United States after deportation
in violation of 8 U.S.C. § 1326. The district court granted a
downward departure and sentenced him to two-years’ imprisonment.
A panel of this court held that the district court abused its
discretion in departing downward, vacated the sentence, and
remanded the case for resentencing. Mendoza-Gallardo now appeals
the increased sentence imposed following remand.
Mendoza-Gallardo contends that 8 U.S.C. § 1326(a) and
8 U.S.C. § 1326(b)(2) define separate offenses. He argues that
*
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that this opinion should not be published and is not precedent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. 01-51050
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the aggravated felony conviction that resulted in his increased
sentence is an element of the offense under 8 U.S.C. § 1326(b)(2)
that should have been alleged in his indictment. Mendoza-
Gallardo 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.
Mendoza-Gallardo 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), 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 the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
No. 01-51050
-3-
AFFIRMED; MOTION GRANTED.