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United States v. Marquez-Rodriguez
Citation: 72 F. App'x 214Docket: No. 03-50113
Court: Court of Appeals for the Fifth Circuit; August 20, 2003; Federal Appellate Court
Jose Luis Marquez appeals his sentence following a guilty plea for unlawful reentry into the United States after deportation, in violation of 8 U.S.C. § 1326. He argues that the provisions of 8 U.S.C. § 1326(a) and § 1326(b) constitute separate offenses and that his prior conviction, which led to an enhanced sentence, should have been included in his indictment. Marquez contends that he only pleaded guilty to the simpler reentry charge under § 1326(a), which carries a maximum sentence of two years, thereby claiming his sentence exceeds this limit. Alternatively, he argues that interpreting § 1326(b) as a sentencing enhancement makes the statute unconstitutional. The Supreme Court in Almendarez-Torres v. United States determined that the penalties under § 1326(b) are indeed sentencing provisions rather than elements of a separate offense, and such provisions do not violate the Due Process Clause. Despite acknowledging that his arguments are foreclosed by Almendarez-Torres, Marquez insists that Apprendi v. New Jersey has cast doubt on this precedent and seeks to preserve his arguments for further review. However, Apprendi did not overrule Almendarez-Torres, and the court is bound to follow the latter until the Supreme Court decides otherwise. The court affirmed the district court's judgment and granted the Government's motion for summary affirmance without requiring an appellee's brief. The opinion is deemed non-precedential under 5th Cir. R. 47.5.