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United States v. Cuautle-Tapia, 02-50584 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 02-50584 Visitors: 8
Filed: Feb. 20, 2003
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-50584 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISIDRO CUAUTLE-TAPIA, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. DR-01-CR-665-1-OG - February 20, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges. PER CURIAM:* Isidro Cuautle-Tapia appeals the sentence imposed following his guilty plea conviction of being found in the
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 02-50584
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

ISIDRO CUAUTLE-TAPIA,

                                         Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. DR-01-CR-665-1-OG
                        --------------------
                          February 20, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Isidro Cuautle-Tapia 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.

Cuautle-Tapia 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.   Cuautle-Tapia maintains that he

pleaded guilty to an indictment which charged only simple reentry


     *
        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that this opinion should not be published and is not precedent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. 02-50584
                                 -2-

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.
Cuautle-Tapia 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.

Source:  CourtListener

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