United States v. Gutierrez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 24, 2003
• Docket: 02-41749
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 25, 2003

Charles R. Fulbruge III Clerk No. 02-41749 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO DUENEZ GUTIERREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-440-1 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Julio Duenez Gutierrez appeals the sentence imposed following

his guilty plea conviction of being found in the United States

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

Gutierrez contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)

are unconstitutional. He argues that the prior conviction that

resulted in his increased sentence is an element of a separate

offense under 8 U.S.C. § 1326(b) that should have been alleged in

his indictment. Gutierrez maintains that he pleaded guilty to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41749 -2-

an indictment which charged only simple reentry under 8 U.S.C.

§ 1326(a). He argues that his sentence exceeds the maximum term

of imprisonment and supervised release which may be imposed for

that offense.

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.

Gutierrez acknowledges that his 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 (2000).

He seeks to preserve his 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 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.

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.