United States v. Velasquez-Rivera

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________ No. 00-40492 Summary Calendar _____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JAIME ASTUL VELASQUEZ-RIVERA, Defendant-Appellant. _________________________________________________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-34-1 _________________________________________________________________ December 4, 2000 Before JOLLY, SMITH, and DeMOSS, Circuit Judges. PER CURIAM:* Jaime Astul Velasquez-Rivera appeals his conviction and 41-month sentence following his plea of guilty to illegal re-entry into the United States after deportation, a violation of 8 U.S.C. § 1326. Velasquez argues that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in his indictment. He acknowledges that his argument is foreclosed by * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review in the light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2361-62 & n.15; see also United States v. Dabeit, ___ F.3d ___, 2000 WL 1634264 at *4 (5th Cir. Oct. 30, 2000, No. 00-10065). Velasquez’s argument is foreclosed. See Almendarez-Torres, 523 U.S. at 235. A F F I R M E D. 2