United States v. Barraza-Soto

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-10431 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus CARLOS BARRAZA-SOTO, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CR-120-1-C -------------------- August 23, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Carlos Barraza-Soto appeals the 87-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. Barraza-Soto argues that his sentence should not have exceeded the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Barraza-Soto 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10431 -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). Barraza- Soto’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 us 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 summary affirmance is GRANTED. The Government need not file an appellee’s brief. AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED.