United States v. Sorto-Fuente

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-41115 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DENIS RICARDO SORTO-FUENTES, also known as Angel Gutierrez, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-401-1 - - - - - - - - - - August 22, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Denis Ricardo Sorto-Fuentes appeals his 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. Sorto-Fuentes acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41115 -2- he seeks to preserve the issue for Supreme Court review in light of 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). Sorto- Fuentes’s argument is foreclosed. The judgment of the district court is AFFIRMED.