United States v. Rodriguez-Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50308 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO RODRIGUEZ-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-2099-ALL-EP -------------------- August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Gerardo Rodriguez-Rodriguez 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.

Rodriguez-Rodriguez complains that his sentence was improperly

enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior

deportation following an aggravated felony conviction.

Rodriguez-Rodriguez argues that the sentencing provision violates

the Due Process Clause because it permitted the sentencing judge

to find, under a preponderance of the evidence standard, a fact

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50308 -2-

which increased the statutory maximum sentence to which he

otherwise would have been exposed. Rodriguez-Rodriguez thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in 8 U.S.C. § 1326(a).

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-Rodriguez 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.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

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

AFFIRMED; MOTION GRANTED.