United States v. Pena-Pena
95 F. App'x 680
April 20, 2004 · Docket 03-51288
Headnotes
Generated summaries- Headnote 1
The Fifth Circuit applied Almendarez‑Torres, holding that the enhancement in 8 U.S.C. § 1326(b) merely increases the penalty and therefore is not an element that must be pleaded or proved to a jury.
- Headnote 2
Because § 1326(b) is treated as a sentencing factor, the court may add the enhancement on top of the base penalty, allowing a sentence longer than the two‑year maximum authorized for simple re‑entry.
- Headnote 3
The court noted that the Supreme Court expressly stated that Apprendi is limited to elements of the crime and that Almendarez‑Torres remains good law regarding sentencing factors.
- Headnote 4
The opinion concludes that the judgment of the district court is affirmed and that the government’s motion for summary affirmance is granted, making the decision final without further briefing.
- Headnote 5
Pena‑Pena argued that the prior‑removal conviction provision created a distinct offense that required indictment. The court applied Almendarez‑Torres, holding the provision is merely a sentencing enhancement.
- Headnote 6
Pena‑Pena contended that *Apprendi* undermined the Almendarez‑Torres analysis. The court rejected that view, noting that the Supreme Court expressly indicated *Apprendi* does not affect the sentencing‑factor rule.
- Headnote 7
Relying on *United States v. Dabeit*, the court reiterated that Almendarez‑Torres remains controlling law and cannot be ignored absent a Supreme Court decision to the contrary.
- Headnote 8
After reviewing the record, the court affirmed the judgment and entered an order granting the government’s motion to forgo an appellee brief.
- Headnote 9
The Supreme Court held that the prior‑removal‑conviction enhancement in 8 U.S.C. § 1326(b) merely increases the authorized penalty and therefore does not create a distinct offense requiring proof beyond a reasonable doubt.
- Headnote 10
Because § 1326(b) is a sentencing factor, the court may lawfully add time beyond the two‑year limit for a § 1326(a) conviction when the defendant’s prior removal conviction triggers the enhancement.
- Headnote 11
The Fifth Circuit notes that Apprendi does not overrule Almendarez‑Torres; thus facts treated as sentencing factors, such as a prior removal conviction, are not subject to the Apprendi jury‑proof requirement.
- Headnote 12
The court states it must follow Almendarez‑Torres until the Supreme Court determines otherwise, reaffirming the treatment of § 1326(b) as a sentencing factor.
- Headnote 13
The appellate court affirmed the judgment, confirming that the sentencing court properly applied the enhancement as a sentencing consideration rather than an element.
Opinion
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III Clerk No. 03-51288 Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABNER PENA-PENA,
Defendant-Appellant.
-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-03-CR-199-ALL-H --------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Abner Pena-Pena appeals the sentence imposed following his
guilty plea conviction of being found in the United States after
deportation/removal in violation of 8 U.S.C. § 1326. Pena-Pena
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 is an element of a separate
offense under 8 U.S.C. § 1326 (b) that should have been alleged in
his indictment. Pena-Pena maintains that he pleaded guilty to an
* 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. No. 03-51288 -2-
indictment which charged only simple reentry under 8 U.S.C. § 1326 (a). He argues that his sentence exceeds the two-year
maximum term of imprisonment which may be imposed for that
offense.
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.
Pena-Pena 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.
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.
AFFIRMED; MOTION GRANTED.