IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20438
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL JESUS VARGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-702-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Saul Jesus Vargas appeals his guilty-plea conviction and
sentence for re-entering the United States illegally after
deportation in violation of 8 U.S.C. § 1326. Vargas’ sentence
was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A).
Vargas first argues that in view of the Supreme Court’s
decision in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63
(2000), his sentence should be limited to the two-year statutory
maximum sentence for a violation of 8 U.S.C. § 1326(a). Vargas
also argues that the felony conviction that resulted in his
*
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that this opinion should not be published and is not precedent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. 00-20438
-2-
increased sentence under 8 U.S.C. § 1326(b)(2) was an element of
the offense that should have been charged in his indictment.
Vargas’ argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although the Supreme Court, in Apprendi, noted that Almendarez-
Torres may have been incorrectly decided, the Court did not
overrule Almendarez-Torres. United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Vargas next argues that the district court incorrectly
applied § 2L1.2(b)(1)(A) of the Sentencing Guidelines in
determining his sentence. Vargas has not challenged the use of
his prior theft conviction as an aggravated felony which would
support the base offense level increase. Upon reviewing the
record, we conclude that the district court properly applied
§ 2L1.2(b)(1)(A) in this case. United States v. Yanez-Huerta,
207 F.3d 746, 747 (5th Cir.), cert. denied, 121 S. Ct. 432
(2000). Finally, we are without jurisdiction to review the
district court’s refusal to depart downward because there is no
indication in the record that the district court believed it
lacked the authority to do so. United States v. Landerman, 167
F.3d 895, 899 (5th Cir. 1999).
AFFIRMED.