IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10214
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO RODRIGUEZ-ALVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-46-1-C
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Francisco Rodriguez-Alvarez appeals the 57-month term of
imprisonment imposed following his guilty plea conviction of
being found in the United States after removal in violation of 8
U.S.C. § 1326. Rodriguez-Alvarez argues that his sentence should
not have exceeded the two-year maximum term of imprisonment
prescribed in 8 U.S.C. § 1326(a). Rodriguez-Alvarez acknowledges
that his argument is foreclosed by the Supreme Court’s decision
in 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that this opinion should not be published and is not precedent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. 01-10214
-2-
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).
Rodriguez-Alvarez’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 to dismiss this appeal. The Government’s motion
to dismiss is DENIED. However, in light of our decision to
affirm the district court’s judgment, the Government need not
file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED.