IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51127
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO CIRIZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-1066-2-DB
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Mario Alberto Ciriza challenges his conviction and 70-month
sentence following his plea of guilty to illegal re-entry into
the United States after deportation, a violation of 8 U.S.C.
§ 1326. Ciriza 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 his
indictment. He also argues that the district court violated his
due process rights by imposing a sentence greater than the two-
year maximum sentence permissible under 8 U.S.C. § 1326 given
*
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that this opinion should not be published and is not precedent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. 00-51127
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that the Government did not plead Ciriza’s prior aggravated
felony in the indictment.
Ciriza acknowledges that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issues 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;
see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), cert. denied, 121 S. Ct. 1214 (2001). Ciriza’s argument
is foreclosed. See Almendarez-Torres, 523 U.S. at 235.
AFFIRMED.