USA vs. De La Cerda-Guerrero, (5th Cir. 2003)

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. United States Court of Appeals Fifth Circuit FILED August 20, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-21163 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRANCISCO DE LA CERDA-GUERRERO, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-255-1 Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM: * Francisco De La Cerda-Guerrero appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326.

De La Cerda-Guerrero contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b) are unconstitutional. He argues that the prior conviction that resulted in his increased sentence is an element of a separate offense under 8 U.S.C. § 1326(b) that should have been alleged in his indictment. De La Cerda-Guerrero maintains that he pleaded guilty to an indictment which charged only simple reentry under 8 U.S.C. § 1326(a). He argues that his sentence exceeds the maximum term of imprisonment and supervised release which may be imposed for that offense. 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.

De La Cerda-Guerrero 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). 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 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.02-21163

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