IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10012
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINGO ARMIJO-PUENTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-278-ALL-R
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July 26, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Domingo Armijo-Puentes (Armijo) appeals after pleading guilty
to a charge of being found in the United States following
deportation, a violation of 8 U.S.C. § 1326. He argues that the
Government breached the plea agreement by failing to recommend that
he be sentenced at the low end of his guideline range. He also
argues 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.
*
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that this opinion should not be published and is not precedent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. 01-10012
-2-
With regard to Armijo’s first argument, he has not shown a
breach of the plea agreement, under plain-error review, given that
the Government’s recommendation was included in his presentence
report. See United States v. Reeves, No. 00-10606, 2001 WL
694084, *1-*2 (5th Cir. June 20, 2001). Armijo acknowledges that
his second issue is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but states
that he seeks to preserve the issue for Supreme Court review in
light of the decision in Apprendi v. New Jersey, 530 U.S. 466
(2000). Apprendi did not overrule Almendarez-Torres. See United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied,
121 S. Ct. 1214 (2001). Armijo’s argument is foreclosed. The
judgment of the district court is AFFIRMED.