IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40094
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ANTONIO GARCIA MADRIGAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CR-58-ALL
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August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
José Antonio Garcia Madrigal appeals the 80-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.
Madrigal acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
*
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that this opinion should not be published and is not precedent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. 01-40094
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seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Madrigal’s plea agreement included a waiver of his right to
“any appeal . . . of any error which may occur surrounding the
substance, procedure, or form of the conviction and sentencing in
this case.” We need not decide whether the issue is waived
because 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).
Madrigal’s argument is foreclosed.
AFFIRMED.