* 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that this opinion should not be published and is not precedent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

FILED

April 23, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-50933

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NASARIO CHAVEZ-CALDERON, also known as Juan Soto-Gonzalez, 

also known as Cruz Elias Chavez-Calderon, also known as 

Julio Varela-Chavez, also known as Nicolas Sosa-Martinez,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. EL-02-CR-611-ALL

--------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges. 

PER CURIAM:*

Nasario Chavez-Calderon 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. 

Chavez-Calderon 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
No. 02-50933 

-2-

been alleged in his indictment. Chavez-Calderon maintains that

he pleaded guilty to an 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.

With certain exceptions not relevant in this case, ChavezCalderon waived the right to “appeal his sentence on any ground,

including any appeal right conferred by 18 U.S.C. § 3742 . . . .”

Chavez-Calderon contends that the waiver-of-appeal provision has

no effect on his appeal because his sentence exceeds the

statutory maximum term of imprisonment prescribed in 8 U.S.C.

§ 1326(a). The Government has not filed a brief in this case and

has not requested that the waiver-of-appeal provision be

enforced. Even if Chavez-Calderon’s argument is not precluded by

his waiver-of-appeal provision, 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. 

Chavez-Calderon 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
No. 02-50933 

-3-

(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.