United States v. Rodriguez-Hernandez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 24, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-41121 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-176-1 --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Luis Rodriguez-Hernandez appeals his guilty plea

conviction and sentence for being found in the United States

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

Rodriguez-Hernandez argues that the sentencing provisions in

8 U.S.C. § 1326(b) are unconstitutional on their face and as

applied in his case. He contends that the unconstitutional

portions of 8 U.S.C. § 1326 should be severed from the statute.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41121 -2-

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 under that provision.

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.

Rodriguez-Hernandez acknowledges that his argument is foreclosed

by Almendarez-Torres, but asserts that the decision has been

called into doubt by Apprendi v. New Jersey, 530 U.S. 466, 489-90

(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). Accordingly, the judgment of the district

court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. The Government asks that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.