IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40113
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURO GONZALEZ-MEDINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CR-529-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mauro Gonzalez-Medina appeals his sentence following his
guilty-plea conviction for illegal reentry after deportation in
violation of 8 U.S.C. § 1326(a) and (b)(2). Gonzalez-Medina
argues that his pre-deportation aggravated felony conviction,
which 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. Gonzalez-Medina acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 247 (1998), but he seeks to preserve the issue for
*
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that this opinion should not be published and is not precedent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. 00-40113
-2-
possible Supreme Court review in light of Apprendi v. New Jersey,
120 S. Ct. 2348, 2362 & n.15 (2000).
While the Apprendi court acknowledged that Almendarez-Torres
may have been incorrectly decided, it did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362 & n.15; see
also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
petition for cert. filed (U.S. Jan. 26, 2001) (No. 00-8299).
Gonzalez-Medina’s argument is thus foreclosed by the Supreme
Court’s decision in Almendarez-Torres, 523 U.S. at 235, which
this court is compelled to follow. See Dabeit, 231 F.3d at 984.
The district court’s judgment is AFFIRMED.