IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50815
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO ALVAREZ-HERNANDEZ,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-210-1-FB
- - - - - - - - - -
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Gustavo Alvarez-Hernandez appeals his sentence following his
guilty plea conviction for illegal re-entry after deportation in
violation of 8 U.S.C. § 1326. Alvarez argues that his sentence
should not have exceeded the two-year maximum sentence under 8
U.S.C. § 1326(a). Alvarez 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, 120 S. Ct. 2348
(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that this opinion should not be published and is not precedent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. 00-50815
- 2 -
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), cert. denied, 121 S. Ct. 1214 (2001). Alvarez’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.