USA vs. Aguilera-Mata, (5th Cir. 2002)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-50646 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ENRIQUE AGUILERA-MATA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-328-ALL-PRM October 30, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM: * Enrique Aguilera-Mata appeals the sentence imposed following his guilty plea conviction of being found in the United States after removal in violation of 8 U.S.C. § 1326. He contends that the sentence is invalid because it exceeds the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). AguileraMata complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior removal following an aggravated felony conviction. He argues that the sentencing provision is unconstitutional. Alternatively, Aguilera-Mata contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses. He argues that the aggravated felony conviction that resulted in his increased sentence was an element of the offense under 8 U.S.C. § 1326(b)(2) that should have been alleged in his indictment.
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.
Aguilera-Mata acknowledges that his arguments are 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 arguments 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 ,
The Government has moved for a summary affirmance in lieu of filing an appelleeÂ’s brief. In its motion, the Government asks that an appelleeÂ’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
No. 02-50646
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff-Appellee, v. Khamis Khalil Dabeit, Defendant-Appellant,, 231 F.3d 979 (5th Cir. 2000)
- U.S. Code - Title 8: Aliens and Nationality - 8 USC 1326 - Sec. 1326. Reentry of removed aliens
- U.S. Supreme Court - Almendarez-Torres v. United States, 523 U.S. 224 (1998)
- U.S. Supreme Court - Apprendi v. New Jersey, 530 U.S. 466 (2000)
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