IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40784
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE OMAR ACOSTA-ALVAREZ, also known as
Antony Omar Rodriguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-135-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Omar Acosta-Alvarez (Acosta) appeals his conviction and
77-month sentence following his plea of guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326. Acosta 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 the indictment. He
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
*
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that this opinion should not be published and is not precedent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. 00-40784
-2-
the issue for Supreme Court review in 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.
Acosta’s argument is foreclosed. See Almendarez-Torres, 523 U.S.
at 235. Accordingly, Acosta’s conviction and sentence are
AFFIRMED.