United States v. Hernandez-Velasquez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10861 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLANDO HERNANDEZ-VELASQUEZ, also known as Rolando Velasquez-Hernandez, also known as Roberto Sanchez-Dionicio, also known as Raul Hernandez-Gonzalez, also known as David Hernandez-Carmona, also known as Manuel Martinez-Rodriguez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:01-CR-9-1-H -------------------- April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

Rolando Hernandez-Velasquez appeals the sentence imposed

following his guilty plea conviction of being found in the United

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

Hernandez-Velasquez contends that 8 U.S.C. § 1326(a) and 8 U.S.C.

§ 1326(b)(2) define separate offenses. He argues that the

aggravated felony conviction that resulted in his increased

sentence is an element of the offense under 8 U.S.C. § 1326(b)(2)

that should have been alleged in his indictment. Hernandez-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10861 -2-

Velasquez maintains that he pleaded guilty to an indictment which

charged only 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-Velasquez 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), cert. denied, 531 U.S. 1202 (2001). 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.

In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment. The Government’s motion to dismiss is DENIED. The

motion for a summary affirmance is GRANTED. The Government need

not file an appellee’s brief.

AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED.