United States v. Rodriguez-Garcia

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-50575 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus YOLANDA RODRIGUEZ-GARCIA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. DR-99-CR-731-1 - - - - - - - - - - June 15, 2001 Before WIENER, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* Yolanda Rodriguez-Garcia appeals the 37-month sentence imposed following her plea of guilty to a charge of being found in the United States after deportation, a violation of 8 U.S.C. § 1326. She contends that the felony conviction that resulted in her increased sentence under 8 U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in the indictment. Rodriguez argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), abrogated Almendarez-Torres v. United States, 523 U.S. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50575 - 2 - 224 (1998). However, Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Rodriguez’s argument is foreclosed. 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.