United States v. Garza-Ceballos

United States Court of Appeals
Fifth Circuit
F I L E D
April 8, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40774
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL GARZA-CEBALLOS,
Defendant-Appellant.
Consolidated with
No. 02-40806
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL CEBALLOS-GARZA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. B-95-CR-84-1
USDC No. B-01-CR-551-1
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No. 02-40774
c/w No. 02-40806
-2-
* 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that this opinion should not be published and is not precedent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.
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Raul Garza-Ceballos appeals from his conviction of illegal
reentry following deportation the revocation of his supervised
release and resentencing based on the illegal-reentry offense.
Garza contends, for the first time on appeal, that both his
previous and current sentences for illegal reentry, and his
supervised-release revocation, were invalid because 8 U.S.C.
§ 1326(b), which provides for longer sentences for defendants
who were deported following conviction of certain types of
felonies, was rendered unconstitutional by Apprendi v. New
Jersey, 530 U.S. 466 (2000). Garza concedes that his argument
is foreclosed, but he raises the issue to preserve it for review
by the Supreme Court.
A revocation proceeding “is not the proper forum in which
to attack the conviction giving rise to the revocation.” United
States v. Hofierka, 83 F.3d 357, 363 (11th Cir. 1996); see United
States v. Francischine, 512 F.2d 827, 828-30 (5th Cir. 1975)
(attempting to undermine the validity of the conviction that
resulted in imposition of a term of supervised release). Garza
attempts to distinguish his case on the basis that he raises a

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No. 02-40774
c/w No. 02-40806
-3-
jurisdictional challenge. Blue brief, 14 n.6. However, Apprendi
errors are not jurisdictional in nature. United States
v. Longoria, 298 F.3d 367, 372 (5th Cir. 2002). Garza therefore
cannot challenge his 1995 illegal reentry conviction through a
challenge to the revocation of his supervised release.
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.
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.

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