United States v. Reyna-Romo

* 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that this opinion should not be published and is not precedent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. 02-50788
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEOPOLDO REYNA-ROMO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-245-ALL
--------------------
Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Leopoldo Reyna-Romo appeals his conviction and sentence for
being found in the United States after removal in violation of
8 U.S.C. § 1326. Reyna-Romo concedes that the two issues he
raises on appeal are foreclosed by this court’s precedent. He
raises the arguments to preserve them for Supreme Court review.
Reyna-Romo first argues that the removal order underlying
his 8 U.S.C. § 1326 conviction was obtained in violation of his
due process rights. According to Reyna-Romo, his removal
proceeding was fundamentally unfair because immigration officials

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improperly applied retroactively certain statutory changes to the
immigration laws to prohibit him from applying for discretionary
relief from removal pursuant to Immigration and Nationality Act
§ 212(c). He contends that the district court erred by denying
his motion to dismiss the indictment on that basis.
In United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir.
2002), cert. denied, 123 S. Ct. 922 (2003), this court held that
an immigration judge’s failure to inform an alien at his removal
hearing of his eligibility for § 212(c) relief does not rise to
the level of fundamental unfairness necessary to successfully
challenge a removal order under the third prong of
8 U.S.C. § 1326(d). Reyna-Romo’s argument that his removal order
cannot be used to support his conviction under 8 U.S.C. § 1326 is
indeed foreclosed.
Reyna-Romo next argues that his sentence is invalid because
it exceeds the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a). He contends that the enhancement of his
sentence pursuant to 8 U.S.C. § 1326(b) was improper because the
sentencing provision is unconstitutional. Alternatively, Reyna-
Romo contends that 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)
define separate offenses. He argues that the prior conviction
that resulted in his increased sentence was an element of a
separate offense under 8 U.S.C. § 1326(b) that should have been
alleged in his indictment.
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

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separate offenses. The Court further held that the sentencing
provisions do not violate the Due Process Clause. Id. at 239-47.
Contrary to Reyna-Romo’s suggestion, that decision was not
overruled by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
See 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.” Id. (internal
quotation marks and citation omitted). Reyna-Romo’s second
argument is also foreclosed.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that an appellee’s brief not be required. The motion is GRANTED.
MOTION GRANTED; AFFIRMED.

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