United States v. Cervantes-Sarmiento

71 F. App'x 422

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III No. 02-41631 Clerk Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO CERVANTES-SARMIENTO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-751-ALL --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rodolfo Cervantes-Sarmiento appeals his guilty-plea

conviction and sentence for being found in the United States,

without permission, following deportation, in violation of

8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal,

Cervantes-Sarmiento argues that 8 U.S.C. § 1326(b) is

unconstitutional on its face and as applied in his case because

it treats a prior conviction for a felony or aggravated felony as

a sentencing factor and not as an element of the offense. He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41631 -2-

contends that the unconstitutional portion of 8 U.S.C. § 1326

should be severed from the statute. He asks us to vacate his

conviction and sentence, reform the judgment to reflect a

conviction only under 8 U.S.C. § 1326(a), and remand his case for

resentencing under that provision.

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.

Cervantes-Sarmiento acknowledges that his argument is foreclosed

by Almendarez-Torres, but asserts that the decision has been

called into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(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). Accordingly, the district court did not err

in sentencing Cervantes-Sarmiento under 8 U.S.C. § 1326(b)(1).

The judgment of the district court is AFFIRMED.