United States v. Maldonado-Gallegos , 82 F. App'x 894 ( 2003 )


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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                December 10, 2003
    Charles R. Fulbruge III
    Clerk
    No. 03-40719
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CESAR MALDONADO-GALLEGOS,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. M-03-CR-17-1
    --------------------
    Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Cesar Maldonado-Gallegos 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
    .
    Maldonado-Gallegos complains that his sentence was improperly
    enhanced pursuant to 
    8 U.S.C. § 1326
    (b) based on a prior
    conviction.    He argues that the sentencing provision is
    unconstitutional.    Maldonado-Gallegos thus contends that his
    *
    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    that this opinion should not be published and is not precedent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. 03-40719
    -2-
    sentence should not exceed the maximum terms of imprisonment and
    supervised release prescribed in 
    8 U.S.C. § 1326
    (a).
    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
    .
    Maldonado-Gallegos 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: 03-40719

Citation Numbers: 82 F. App'x 894

Filed Date: 12/9/2003

Precedential Status: Non-Precedential

Modified Date: 12/21/2014