United States v. Garza-Ceballos

Opinion

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.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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