United States v. Olvera-De Luna ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 02-50162
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JESUS OLVERA-DE LUNA,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. SA-00-CR-495-ALL
    --------------------
    August 21, 2002
    Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
    PER CURIAM:*
    Jesus Olvera-De Luna 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
    .     Olvera-De
    Luna complains that his sentence was improperly enhanced pursuant
    to 
    8 U.S.C. § 1326
    (b)(2) based on his prior deportation following
    an aggravated felony conviction.   Olvera-De Luna argues that the
    sentencing provision violates the Due Process Clause because it
    permitted the sentencing judge to find, under a preponderance of
    the evidence standard, a fact which increased the statutory
    *
    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    that this opinion should not be published and is not precedent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. 02-50162
    -2-
    maximum sentence to which he otherwise would have been exposed.
    Olvera-De Luna thus contends that his sentence is invalid and
    argues that it should not exceed the two-year maximum term of
    imprisonment prescribed in 
    8 U.S.C. § 1326
    (a).
    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
    .
    Olvera-De Luna 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), 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).    The judgment of
    the district court is AFFIRMED.
    The Government has moved for a summary affirmance in lieu of
    filing an appellee’s brief.   In its motion, the Government asks
    that the judgment of the district court be affirmed and that an
    appellee’s brief not be required.    The motion is GRANTED.
    AFFIRMED; MOTION GRANTED.
    

Document Info

Docket Number: 02-50162

Filed Date: 8/23/2002

Precedential Status: Non-Precedential

Modified Date: 4/17/2021