United States v. Duarte-Juarez

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2004 Charles R. Fulbruge III Clerk No. 03-41602 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ADELFO DUARTE-JUAREZ, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-03-CR-911-ALL --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:* Adelfo Duarte-Juarez appeals his sentence after his guilty-

plea conviction for illegally reentering the United States after

being deported. See 8 U.S.C. § 1326 (a) and (b). He contends

that the district court erroneously increased his offense level

by 16 levels because his prior conviction for harboring illegal

aliens for profit is not an “alien smuggling offense” under

U.S.S.G. § 2L1.2(b)(1)(A)(vii).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 03-41602 -2- This court rejected Duarte’s essential contention in United

States v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002), cert.

denied, 538 U.S. 991 (2003). The offenses listed in 8 U.S.C.

§ 1324 (a)(1)(A), which include harboring aliens, are “alien

smuggling” offenses under U.S.S.G. § 2L1.2(b)(1)(A)(vii).

Solis-Campozano, 312 F.3d at 167-68 . Duarte concedes that his

argument is foreclosed, and he raises the issue only to preserve

it for possible review by the United States Supreme Court.

Duarte contends that his sentence is invalid because the

sentencing scheme of 8 U.S.C. § 1326 (a) and (b) is

unconstitutional and the prior conviction that resulted in his

increased sentence was an element of the offense that should have

been alleged in his indictment. Duarte acknowledges that this

argument is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224, 235, 237-39 (1998). He asserts that the decision has

been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), and he raises the issue only to preserve it for possible

review by the United States Supreme Court.

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.