United States v. Espinal

78 F. App'x 436

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 22, 2003

Charles R. Fulbruge III Clerk No. 03-40319 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SUSANA CLEMENTINA ESPINAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-581-ALL --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Susana Clementina Espinal appeals the sentence imposed

following her guilty plea conviction of being found in the United

States after deportation in violation of 8 U.S.C. § 1326.

Espinal argues that the “felony” and “aggravated felony”

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional.

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40319 -2- separate offenses. The Court further held that the sentencing

provisions do not violate the Due Process Clause. Id. at 239-47.

Espinal acknowledges that her argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), but

asserts that the decision has been cast into doubt by Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). She seeks to preserve

her 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.