United States v. De Lima

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40428
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MOACIR ALVES DE LIMA,
also known as Joao Dacunha,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-519-ALL
--------------------
December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Moacir Alves De Lima appeals his sentence imposed following
his guilty plea conviction for illegal reentry into the United
States following his deportation. Alves argues that 8 U.S.C.
§ 1326(b) is unconstitutional in light of Apprendi v. New Jersey,
530 U.S. 466 (2000) because the enhancement provision is not
treated as an element of the offense to be alleged and proved to

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No. 02-40428
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a jury beyond a reasonable doubt. He acknowledges that his
argument is foreclosed by Supreme Court and circuit precedent,
but he wishes to preserve the issue for further review.
Alves’ argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235-47 (1998), which held that the fact of
a prior conviction is a sentencing factor. Apprendi did not
overrule Almendarez-Torres, but instead carved out an exception
which preserved the holding in that case. 530 U.S. at 489-90.
This court must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (internal quotation
and citation omitted), cert. denied, 531 U.S. 1202 (2001).
AFFIRMED.

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