United States v. Olvera-Rico

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-41035 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS OLVERA-RICO, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-223-1 -------------------- June 15, 2001 Before WIENER, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* Carlos Olvera-Rico appeals the 57-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. Olvera-Rico 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 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41035 -2- for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 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). Olvera- Rico's argument is foreclosed. The judgment of the district court is AFFIRMED.