United States v. Gutierrez-Garrido

74 F. App'x 402

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 2003
• Docket: 03-40026
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS September 9, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-40026 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO GUTIERREZ-GARRIDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-02-CR-1001-ALL --------------------

Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Alfredo Gutierrez-Garrido (“Gutierrez”) appeals his

guilty-plea conviction and sentence for violating 8 U.S.C.

§ 1326(a) and (b)(1) by illegally reentering the United States,

without permission, following his conviction for a felony and

subsequent deportation.

For the first time on appeal, Gutierrez argues that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40026 -2-

conviction for a felony or aggravated felony as a sentencing factor

and not as an element of the offense. He asks us to vacate his

conviction and sentence, reform the judgment to reflect a

conviction only under 8 U.S.C. § 1326(a), and remand his case for

resentencing.

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 argument is 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 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). Gutierrez’s conviction and sentence are

therefore AFFIRMED.

The Government concedes that the judgment incorrectly

reflects conviction under 8 U.S.C. § 1326(a) & (b)(2), which

requires deportation subsequent to conviction for an aggravated

felony. Both parties agree that the offense of conviction was No. 03-40026 -3-

illegal reentry following deportation subsequent to conviction for

a felony, not an aggravated felony, and that the statutory basis is

8 U.S.C. § 1326(a) & (b)(1). Accordingly, remand is appropriate

pursuant to FED. R. CRIM. P. 36 for the limited purpose of correcting

the judgment to reflect the appropriate statutory basis. See,

e.g., United States v. Johnson, 588 F.2d 961, 964 (5th Cir. 1979).

REMANDED FOR LIMITED PURPOSE OF CORRECTING CLERICAL ERROR

IN JUDGMENT.