Filed: Mar. 18, 2003
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50927 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GUADALUPE MONSIVAIS-CARBAJAL, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-723-ALL-PRM - February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Jose Guadalupe Monsivais-Carbajal appeals the sentence imposed following his guilty plea conv
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50927 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE GUADALUPE MONSIVAIS-CARBAJAL, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-723-ALL-PRM - February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Jose Guadalupe Monsivais-Carbajal appeals the sentence imposed following his guilty plea convi..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50927
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE GUADALUPE MONSIVAIS-CARBAJAL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-723-ALL-PRM
--------------------
February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Guadalupe Monsivais-Carbajal appeals the sentence
imposed following his guilty plea conviction of attempting to
illegally reenter the United States after deportation/removal in
violation of 8 U.S.C. § 1326. Monsivais-Carbajal 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. Monsivais-Carbajal maintains that he pleaded guilty
*
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that this opinion should not be published and is not precedent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. 02-50927
-2-
to an indictment which charged only simple attempted 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.
Monsivais-Carbajal 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.