United States v. Jimenez-Diaz , 72 F. App'x 980 ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   August 20, 2003
    Charles R. Fulbruge III
    Clerk
    No. 03-50182
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    VALENTINE JIMENEZ-DIAZ,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. EP-02-CR-1803-ALL
    --------------------
    Before JONES, WIENER, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Valentine Jimenez-Diaz 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
    .
    Jimenez 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 been
    alleged in his indictment.    Jimenez maintains that he pleaded
    *
    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    that this opinion should not be published and is not precedent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. 03-50182
    -2-
    guilty to an indictment which charged only simple reentry under
    
    8 U.S.C. § 1326
    (a).    He argues that his sentence exceeds the
    two-year maximum term of imprisonment 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
    .
    Jimenez 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.
    

Document Info

Docket Number: 03-50182

Citation Numbers: 72 F. App'x 980

Filed Date: 8/19/2003

Precedential Status: Non-Precedential

Modified Date: 4/18/2021