USA vs. Martinez-Reyes, (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 December 12, 2002 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-41275 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE MANUEL MARTINEZ-REYES, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-449-1 Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM: * Jose Manuel Martinez-Reyes appeals his guilty plea conviction and sentence for being found in the United States after deportation in violation of 8 U.S.C. § 1326. MartinezReyes argues that the sentencing provisions in 8 U.S.C. § 1326(b) are unconstitutional on their face and as applied in his case.
He contends that the unconstitutional portions of 8 U.S.C. § 1326 should be severed from the statute. He asks us to 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 under that provision.
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.
Martinez-Reyes acknowledges that his argument is foreclosed by Almendarez-Torres , but asserts that the decision has been called into doubt by Apprendi v. New Jersey , 530 U.S. 466, 489-90 (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.” Id. at 984 (internal quotation marks and citation omitted).
Accordingly, the judgment of the district court is AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appelleeÂ’s brief. The Government asks that an appelleeÂ’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.
No. 01-41275
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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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