United States v. Rocha-Gutierrez , 85 F. App'x 382 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 12, 2004
Charles R. Fulbruge III
Clerk
No. 03-50774
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE HOMERO ROCHA-GUTIERREZ, also
known as Jose Homero Rocha,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-77-ALL
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Homero Rocha-Gutierrez appeals the sentence imposed
following his guilty plea conviction of being found in the United
States after deportation/removal in violation of 8 U.S.C. § 1326.
Rocha-Gutierrez contends that 8 U.S.C. § 1326(a) and 8 U.S.C.
§ 1326(b) define separate offenses. He argues that the prior
conviction that resulted in his increased sentence is an element
of a separate offense under 8 U.S.C. § 1326(b) that should have
*
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that this opinion should not be published and is not precedent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. 03-50774
-2-
been alleged in his indictment. Rocha-Gutierrez 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 maximum term of supervised release 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.
Rocha-Gutierrez 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.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.