United States v. Fortuna-Turbiartes

87 F. App'x 953

Opinion

PER CURIAM:

Footnotes

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Juana Fortuna-Turbiartes appeals the sentence imposed following her guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326. Fortuna-Turbiartes contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional. She therefore argues that her conviction must be reduced to one under the lesser included offense found in 8 U.S.C. § 1362(a), her judgment must be reformed to reflect a conviction only under that provision, and her sentence must be vacated and the case remanded for resentencing to no more than two years’ imprisonment and one year of supervised release.

In Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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. Fortuna-Turbiartes acknowledges that her 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). She seeks to preserve her 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). This court must follow Al mendarez-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.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.