United States v. Solorenzo-Torres

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 20, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40062
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO SOLORENZO-TORRES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-502-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roberto Solorenzo-Torres appeals his guilty-plea conviction
and sentence for violating 8 U.S.C. § 1326(a) and (b) by being
found in the United States, without permission, following his
conviction for an aggravated felony and subsequent deportation.
For the first time on appeal, Solorenzo-Torres argues 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. He asks us to

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No. 03-40062
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vacate his conviction and sentence, reform the judgment to
reflect a conviction only under 8 U.S.C. § 1326(a), and remand
his case for resentencing.
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.
Solorenzo-Torres 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).
AFFIRMED.

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