IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51012
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENITO RODRIGUEZ-ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CR-72-ALL-JN
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Enrique Rodriguez-Ortiz appeals the 70-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. For the first time on appeal, Rodriguez argues that the
aggravated-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 information to which
he pleaded guilty.
*
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that this opinion should not be published and is not precedent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. 00-51012
-2-
Rodriguez acknowledges that his argument is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
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), cert. denied, 121 S. Ct. 1214 (2001). Rodriguez
has failed to demonstrate error, plain or otherwise. Dabeit, 231
F.3d at 983-84. The judgment of the district court is
AFFIRMED.