United States v. Vasquez-Herrera ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-40116
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BELEM VASQUEZ-HERRERA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. L-01-CR-772-ALL
    --------------------
    December 12, 2002
    Before JOLLY, JONES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Belem Vasquez-Herrera appeals his guilty plea conviction and
    sentence for being found in the United States after deportation
    in violation of 
    8 U.S.C. § 1326
    .   Vasquez-Herrera 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
    *
    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    this opinion should not be published and is not precedent except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. 02-40116
    -2-
    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
    .
    Vasquez-Herrera 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 appellee’s brief.    The Government asks that an
    appellee’s brief not be required.    The motion is GRANTED.
    AFFIRMED; MOTION GRANTED.
    

Document Info

Docket Number: 02-40116

Filed Date: 12/13/2002

Precedential Status: Non-Precedential

Modified Date: 12/21/2014