United States v. Hernandez

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. 02-51090 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO GARCIA HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-1009-PRM --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Ernesto Garcia Hernandez appeals the sentence imposed

following his guilty plea conviction of attempting to illegally

reenter the United States after deportation/removal in violation

of 8 U.S.C. § 1326. Hernandez 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 is

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

should have been alleged in his indictment. Hernandez maintains

that he pleaded guilty to an indictment which charged only

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-51090 -2-

attempted simple reentry under 8 U.S.C. § 1326(a). He argues

that his sentence exceeds the two-year maximum term of

imprisonment 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.

Hernandez 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). 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.