United States v. Gutierrez-Cardona

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 2, 2002
• Docket: 02-10110
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10110 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO GUTIERREZ-CARDONA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas (4:01-CR-145-1-Y) -------------------- August 1, 2002

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Antonio Gutierrez-Cardona (Gutierrez)

appeals his conviction and sentence for illegal reentry following

deportation. Gutierrez argues that his sentence should be vacated

because the district court erred in computing his criminal history

at sentencing and, in the alternative, that his conviction and

sentence are void in light of Apprendi v. New Jersey, 530 U.S. 466

(2000). Gutierrez concedes that his second argument is foreclosed

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. states that he raises the issue to preserve it for possible review

by the Supreme Court.

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), cert. denied, 531 U.S. 1202 (2001). We must follow the

precedent set in Almendarez-Torres “unless and until the Supreme

Court itself determines to overrule it.” Dabeit, 231 F.3d at 984

(internal quotation and citation omitted).

As for the sentencing issue, the district court did not err in

determining that Gutierrez’s two prior convictions for burglary of

the same business are not “related cases” within the meaning

U.S.S.G. § 4A1.2(a)(2). United States v. Mota-Aguirre, 186 F.3d

596, 600 (5th Cir. 1999); United States v. Ford, 996 F.2d 83, 86

(5th Cir. 1993).

AFFIRMED.