IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11419
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FABIAN CASTRO-BARRON,
also known as J. Natividad-Deleon,
also known as Natividad Deleon,
also known as Irineo Tapia-Baron,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-143-1-Y
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Fabian Castro-Barron appeals the 46-month term of
imprisonment imposed following his guilty plea conviction of
being found in the United States after deportation in violation
of 8 U.S.C. § 1326. For the first time on appeal, Castro-Barron
argues that his guilty plea was involuntary. Castro-Barron
contends that the magistrate judge failed to advise him during
the plea colloquy that a prior aggravated felony conviction is an
*
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that this opinion should not be published and is not precedent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. 00-11419
-2-
element of the offense under 8 U.S.C. § 1326(b)(2), which the
government would have to prove to a jury beyond a reasonable
doubt. Castro-Barron acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but 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 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). Castro-
Barron’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.