United States v. Ramos-Rubio

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 No. 03-40002 Clerk Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ISAAC MANUEL RAMOS-RUBIO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-02-CR-529-1 --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:* Isaac Manuel Ramos-Rubio appeals his guilty-plea conviction

and sentence for violating 8 U.S.C. § 1326 (a) and (b) by entering

the United States, without permission, following both his

conviction for an aggravated felony and subsequent deportation.

Ramos-Rubio contends that 8 U.S.C. § 1326 (b) is unconstitutional

because it treats a prior conviction for a felony or aggravated

felony as a sentencing factor and not as an element of the

offense. Alternatively, Ramos-Rubio contends that 8 U.S.C.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-40002 -2-

§ 1326(a) and 8 U.S.C. § 1326 (b) define separate offenses. He

argues that the prior conviction that resulted in his increased

sentence was an element of a separate offense under 8 U.S.C.

§ 1326 (b) that should have been alleged in his indictment.

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 .

Ramos-Rubio 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).

AFFIRMED.