IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50610
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS HERRERA-HERNANDEZ, also known as
Jose Luis Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-33-1-H
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jose Luis Herrera-Hernandez appeals his sentence following
his guilty plea conviction for illegal re-entry after deportation
in violation of 8 U.S.C. § 1326. Herrera argues that his
sentence should not have exceeded the two-year maximum sentence
under 8 U.S.C. § 1326(a). Herrera 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 Jersey, 530 U.S. 466 (2000).
*
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that this opinion should not be published and is not precedent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. 00-50610
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Herrera’s argument is foreclosed by Almendarez-Torres, 523
U.S. at 235.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is granted.
AFFIRMED; MOTION GRANTED.