United States v. Lopez-Velasquez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51038
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMAR LOPEZ-VELASQUEZ,
also known as Manuel Ramirez,
also known as Omar Lopez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-01-CR-93-ALL
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April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Omar Lopez-Velasquez 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. Lopez-
Velasquez 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. Lopez-Velasquez
argues that the sentencing provision violates the Due Process
Clause because it permitted the sentencing judge to find, under a
*
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that this opinion should not be published and is not precedent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. 01-51038
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preponderance of the evidence standard, a fact which increased
the statutory maximum sentence to which he otherwise would have
been exposed. Lopez-Velasquez 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.
Lopez-Velasquez 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.
No. 01-51038
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