United States v. Garza-Ceballos ( 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                   April 8, 2003
    Charles R. Fulbruge III
    Clerk
    No. 02-40774
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RAUL GARZA-CEBALLOS,
    Defendant-Appellant.
    Consolidated with
    No. 02-40806
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RAUL CEBALLOS-GARZA,
    Defendant-Appellant.
    --------------------
    Appeals from the United States District Court
    for the Southern District of Texas
    USDC No. B-95-CR-84-1
    USDC No. B-01-CR-551-1
    --------------------
    No. 02-40774
    c/w No. 02-40806
    -2-
    Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
    PER CURIAM:*
    Raul Garza-Ceballos appeals from his conviction of illegal
    reentry following deportation the revocation of his supervised
    release and resentencing based on the illegal-reentry offense.
    Garza contends, for the first time on appeal, that both his
    previous and current sentences for illegal reentry, and his
    supervised-release revocation, were invalid because 
    8 U.S.C. § 1326
    (b), which provides for longer sentences for defendants
    who were deported following conviction of certain types of
    felonies, was rendered unconstitutional by Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000).   Garza concedes that his argument
    is foreclosed, but he raises the issue to preserve it for review
    by the Supreme Court.
    A revocation proceeding “is not the proper forum in which
    to attack the conviction giving rise to the revocation.”     United
    States v. Hofierka, 
    83 F.3d 357
    , 363 (11th Cir. 1996); see United
    States v. Francischine, 
    512 F.2d 827
    , 828-30 (5th Cir. 1975)
    (attempting to undermine the validity of the conviction that
    resulted in imposition of a term of supervised release).   Garza
    attempts to distinguish his case on the basis that he raises a
    *
    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    that this opinion should not be published and is not precedent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. 02-40774
    c/w No. 02-40806
    -3-
    jurisdictional challenge.    Blue brief, 14 n.6.   However, Apprendi
    errors are not jurisdictional in nature.     United States
    v. Longoria, 
    298 F.3d 367
    , 372 (5th Cir. 2002).    Garza therefore
    cannot challenge his 1995 illegal reentry conviction through a
    challenge to the revocation of his supervised release.
    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
    .
    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).
    AFFIRMED.