United States v. Gonzalez-Davila

* 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that this opinion should not be published and is not precedent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
April 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40333
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE GONZALEZ-DAVILA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-717-1
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Rene Gonzalez-Davila appeals his guilty plea conviction
and sentence for being found in the United States after
deportation/removal in violation of 8 U.S.C. § 1326. Gonzalez-
Davila argues that the sentencing provisions in 8 U.S.C.
§ 1326(b) are unconstitutional on their face and as applied in
his case. He contends that the unconstitutional portions of
8 U.S.C. § 1326 should be severed from the statute. He asks us
to vacate his conviction and sentence, reform the judgment to

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No. 02-40333
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reflect a conviction only under 8 U.S.C. § 1326(a), and remand
his case for resentencing under that provision.
Pursuant to an oral plea agreement, Gonzalez-Davila waived
the right to appeal his sentence. Gonzalez-Davila contends, for
several reasons, that his appeal waiver should not preclude our
consideration of the foregoing issue. The Government has not
filed a brief in this case and has not requested that the waiver
be enforced. Even if Gonzalez-Davila’s challenge to the
constitutionality of 8 U.S.C. § 1326(b) is not precluded by his
waiver of appeal, it is foreclosed. Accordingly, we pretermit
consideration of the waiver issue.
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.
Gonzalez-Davila 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). The judgment of the district court is
AFFIRMED.

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No. 02-40333
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The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. The Government asks that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.

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