United States v. Hernandez-Velasquez , 82 F. App'x 904 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-40844
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE HERNANDEZ-VELASQUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-92-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Hernandez-Velasquez 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. Hernandez-Velasquez contends that the portions
of 8 U.S.C. § 1326 that raise the statutory maximum sentence on
the basis of prior convictions are unconstitutional. He argues
that his sentence exceeds the maximum term of imprisonment and
*
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that this opinion should not be published and is not precedent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. 03-40844
-2-
supervised release that may be imposed under 8 U.S.C. § 1326(a)(2).
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.
Hernandez-Velasquez 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.