IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40856
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN VALLE-TOVAR,
also known as Arturo Morales-Olvera,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-160-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Augustin Valle-Tovar appeals the 77-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
He contends 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.
Valle-Tovar acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
*
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that this opinion should not be published and is not precedent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. 00-40856
-2-
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), petition for cert. filed, (U.S. Jan. 26,
2001)(No. 00-8299). Valle-Tovar’s argument is foreclosed. The
judgment of the district court is AFFIRMED.
United States v. Valle-Tovar
Combined Opinion