United States v. Garcia-Perez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21176
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO GARCIA-PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-169-ALL
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alfonso Garcia-Perez appeals his guilty plea conviction and
sentence for being found in the United States after deportation
in violation of 8 U.S.C. § 1326. Garcia argues that the
sentencing provisions in 8 U.S.C. § 1326(b)(1) and (b)(2) 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
*
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this opinion should not be published and is not precedent except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. 01-21176
-2-
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. Alternatively, he asks us to
simply vacate his sentence and remand his case for resentencing
under 8 U.S.C. § 1326(a).
Garcia acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
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), cert. denied, 531 U.S. 1202 (2001). 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). Accordingly,
the judgment of the district court is AFFIRMED.