IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10987
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL GARCIA-CRUZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:00-CR-42-1-C
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Rafael Garcia-Cruz appeals his conviction and 57-month
sentence following his plea of guilty to a charge of illegal
re-entry to the United States after deportation, a violation of
8 U.S.C. § 1326. Garcia-Cruz asserts 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
alleged in the indictment. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998), but he seeks to preserve the issue for Supreme
*
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this opinion should not be published and is not precedent except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. 00-10987
-2-
Court review in light of Apprendi v. New Jersey, 120 S. Ct. 2348,
2362-63 (2000). Apprendi did not overrule Almendarez-Torres.
See Apprendi, 120 S. Ct. at 2361-62 & n.15; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (explaining that the
Supreme Court in Apprendi did not overrule Almendarez-Torres),
petition for cert. filed, (U.S. Jan. 26, 2001) (No. 00-8299).
Garcia-Cruz’s argument is foreclosed. See Almendarez-Torres, 523
U.S. at 235. Accordingly, Garcia-Cruz’s conviction and sentence
are AFFIRMED.