United States v. Hernandez-Alvarez

Opinion

United States Court of Appeals Fifth Circuit F I L E D April 23, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50946 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LORENZO HERNANDEZ-ALVAREZ, also known as Juan Torres-Sanchez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-1060-ALL-EP --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Lorenzo Hernandez-Alvarez 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.

He contends that the sentence is invalid because it exceeds the

two-year maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a). Hernandez-Alvarez complains that his sentence was

improperly enhanced pursuant to 8 U.S.C. § 1326(b). He argues

that the sentencing provision is unconstitutional.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50946 -2-

Alternatively, Hernandez-Alvarez contends that 8 U.S.C. § 1326(a)

and 8 U.S.C. § 1326(b) define separate offenses. He argues that

the prior conviction that resulted in his increased sentence was

an element of a separate offense under 8 U.S.C. § 1326(b) that

should have been alleged in his indictment.

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.

Hernandez-Alvarez 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.