United States v. Lopez-Rios ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10705
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO LOPEZ-RIOS, also known as Manuel Natividad,
also known as Manuel Aguilar-Natividad, also known
as Alberto Rios-Lopez, also known as Albert Lopez,
also known as Jesus Alberto Mendoza, also known as
Jesus Armendariz-Rios, also known as Miguel Aguire,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-395-1-M
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alberto Lopez-Rios appeals the sentence imposed following
his guilty plea conviction of being found in the United States
after deportation in violation of 8 U.S.C. § 1326. Lopez-Rios
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 is an element
of the offense under 8 U.S.C. § 1326(b)(2) that should have been
*
Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 02-10705
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alleged in his indictment and included in the factual basis of
his guilty plea. Lopez-Rios 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 two-year
maximum term of imprisonment 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.
Lopez-Rios 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.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
No. 02-10705
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motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.