IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40787
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO RIOS-PEÑA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-133-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Arturo Rios-Peña (Rios) appeals his conviction and 46-month
prison sentence following a plea of guilty to illegal re-entry
into the United States after deportation. See 8 U.S.C. § 1326.
Rios 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
the issue for Supreme Court review in light of Apprendi v. New
*
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that this opinion should not be published and is not precedent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. 00-40787
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Jersey, 120 S. Ct. 2348 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2361-62 & n.15.
Rios’ argument is foreclosed. See Almendarez-Torres, 523 U.S. at
235. Accordingly, Rios’ conviction and sentence are AFFIRMED.