Opinion

United States v. Soto-Fuerte

  • 88 F. App'x 752
Court
Court of Appeals for the Fifth Circuit
Filed
Feb 18, 2004
Status
Published
On the bench
Garza, Higginbotham, Prado
Cited by
1 cases
Authority
More cited than 45.5%

The opinion

PER CURIAM. *

*753 Arturo Soto-Fuerte pleaded guilty to a charge of being present illegally in the United States subsequent to deportation and a conviction for an aggravated felony, a violation of 8 U.S.C. § 1326 . The district court sentenced him to seventy months of imprisonment and three years of supervised release.

Soto-Fuerte contends that the sentencing provisions of 8 U.S.C. § 1326 (b) are unconstitutional. He acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), but he asserts that AlmendarezTorres has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). He seeks to preserve his argument for further review.

Apprendi did not overrule AlmendarezTorres. See Apprendi, 530 U.S. at 489-90 ; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). We 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).

In addition, Soto-Fuerte argues that the written judgment of conviction must be reformed to delete a condition of supervised release that prohibits his possession of a dangerous weapon. He asserts that this condition is a special condition of supervised release that conflicts with the district court’s oral pronouncement of his sentence.

Soto-Fuerte’s argument is foreclosed by our decision in United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir.2003). Accordingly, the judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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