United States v. Perez-Ocanas

95 F. App'x 579

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 20, 2004
• Docket: 03-41123
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004

Charles R. Fulbruge III Clerk No. 03-41123 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIRSO PEREZ-OCANAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-03-CR-342-1 --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

Tirso Perez-Ocanas 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.

Perez-Ocanas argues that 8 U.S.C. § 1326(b) is unconstitutional

on its face and as applied to him. He thus contends that his

sentence should not exceed the maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41123 -2-

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. Perez-Ocanas 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.