United States v. Soto-Fuerte

88 F. App'x 752

Opinion

PER CURIAM.*

Arturo Soto-Fuerte pleaded guilty to a charge of being present illegally in the United States subsequent to deportation and a conviction for an aggravated felony, a violation of 8 U.S.C. § 1326. The district court sentenced him to seventy months of imprisonment and three years of supervised release.

Soto-Fuerte contends that the sentencing provisions of 8 U.S.C. § 1326(b) are unconstitutional. He acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he asserts that AlmendarezTorres has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He seeks to preserve his argument for further review.

Apprendi did not overrule AlmendarezTorres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). We 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).

In addition, Soto-Fuerte argues that the written judgment of conviction must be reformed to delete a condition of supervised release that prohibits his possession of a dangerous weapon. He asserts that this condition is a special condition of supervised release that conflicts with the district court’s oral pronouncement of his sentence.

Soto-Fuerte’s argument is foreclosed by our decision in United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir.2003). Accordingly, the judgment of the district court is AFFIRMED.

Footnotes

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.