USA vs. Garay-Burgos, (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. 03-50179 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARTURO GARAY-BURGOS, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-1385-ALL-DB Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM: * Arturo Garay-Burgos 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. Garay complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b) based on a prior conviction. He argues that the sentencing provision is unconstitutional. Garay thus contends that his sentence should not exceed the maximum terms 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.
Garay 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). 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. 03-50179
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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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