United States v. Carrasco-Carrasco ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CARRASCO-CARRASCO,
Defendant-Appellant.
--------------------
Consolidated with
No. 02-50670
--------------------
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CARRASCO,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-26-ALL-JN
--------------------
December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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. 02-50648 c/w No. 02-50670
-2-
In this consolidated appeal, Isaac Carrasco-Carrasco
challenges 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. Carrasco-Carrasco 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. Carrasco-Carrasco argues that the
sentencing provision is unconstitutional because it permitted the
sentencing judge to find, under a preponderance of the evidence
standard, a fact which increased the statutory maximum sentence
to which he otherwise would have been exposed. Carrasco-Carrasco
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.
Carrasco-Carrasco 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
No. 02-50648 c/w No. 02-50670
-3-
(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.