United States v. Ortis-Estrada , 79 F. App'x 42 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-50446
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIANO ORTIS-ESTRADA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-02-CR-00605-ALL
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Mariano Ortis-Estrada 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. Ortis
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. Ortis maintains that he pleaded guilty to an
*
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that this opinion should not be published and is not precedent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. 03-50446
-2-
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.
Ortis acknowledges that his arguments are 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 arguments 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.