United States v. Tovar-Rodriguez ( 2002 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-51075
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    FELIPE TOVAR-RODRIGUEZ, also known as Phillip Tovar, also
    known as Phillip Rodriguez, also known as Humberto Romo Lopez,
    also known as Felipe Castillo, also known as Jose Perez-Johnson,
    also known as Armando Hernandez, also known as Ricardo Uribe,
    also known as Ricardo Garcia Hernandez,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. SA-01-CR-358-ALL
    --------------------
    June 19, 2002
    Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
    PER CURIAM:*
    Felipe Tovar-Rodriguez appeals the sentence imposed
    following his guilty plea conviction of being found in the United
    States after deportation 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).     Tovar-Rodriguez complains that his sentence was
    improperly enhanced pursuant to 
    8 U.S.C. § 1326
    (b)(2) based on
    *
    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    that this opinion should not be published and is not precedent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. 01-51075
    -2-
    his prior deportation following an aggravated felony conviction.
    He argues that the sentencing provision violates the Due Process
    Clause.   Alternatively, Tovar-Rodriguez 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
    .
    Tovar-Rodriguez 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 the judgment of the district court be affirmed and that an
    appellee’s brief not be required.    The motion is GRANTED.
    No. 01-51075
    -3-
    AFFIRMED; MOTION GRANTED.
    

Document Info

Docket Number: 01-51075

Filed Date: 6/24/2002

Precedential Status: Non-Precedential

Modified Date: 12/21/2014