United States v. Herrera-Ortega ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20396
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIOQUINTO HERRERA-ORTEGA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-784
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Pioquinto Herrera-Ortega appeals his guilty plea conviction
and sentence for being found in the United States after
deportation in violation of 8 U.S.C. § 1326. Herrera-Ortega
argues that the sentencing provisions in 8 U.S.C. § 1326(b) are
unconstitutional on their face and as applied in his case. He
contends that the unconstitutional portions of 8 U.S.C. § 1326should 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this opinion should not be published and is not precedent except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. 02-20396
-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.
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.
Herrera-Ortega acknowledges that his argument is foreclosed by
Almendarez-Torres, but 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). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Id. at 984 (internal quotation marks and citation omitted).
Accordingly, the judgment of the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. The Government asks that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.