United States v. Solorenzo-Torres

72 F. App'x 199

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 19, 2003
• Docket: 03-40062
• Status: Unpublished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 August 20, 2003

Charles R. Fulbruge III No. 03-40062 Clerk Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO SOLORENZO-TORRES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-502-ALL --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roberto Solorenzo-Torres appeals his guilty-plea conviction

and sentence for violating 8 U.S.C. § 1326(a) and (b) by being

found in the United States, without permission, following his

conviction for an aggravated felony and subsequent deportation.

For the first time on appeal, Solorenzo-Torres argues that

8 U.S.C. § 1326(b) is unconstitutional because it treats a prior

conviction for a felony or aggravated felony as a sentencing

factor and not as an element of the offense. He asks us to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40062 -2-

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.

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.

Solorenzo-Torres 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).

AFFIRMED.