United States v. Perez , 7 F. App'x 71 ( 2001 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.

The defendant pleaded guilty to a one-count information charging him with being unlawfully in the United States after having previously been deported, in violation of 8 U.S.C. § 1326. The district court sentenced the defendant to a term of 57 months in prison based on the fact that the defendant had been previously convicted of an “aggravated felony.” 8 U.S.C. § 1326(b)(2).

The defendant contends that his sentence is unconstitutional because the fact of his prior conviction, which increased the maximum sentence from two years to twenty years, see 8 U.S.C. § 1326(a), (b)(2), is an element of the crime that should have been charged in the information. The defendant concedes that this precise issue was resolved against his position by the Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See also Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum” is an element of the crime rather than a sentencing factor) (emphasis added). He raises it here only to preserve his opportunity to urge the Supreme Court to overrule Almendarez-Torres. We are, of course, bound by the Supreme Court’s decision. See Rodriguez de Quijas v. Shearson/American Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).

For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.