United States v. Garcia-Mariscal

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50020 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GABRIEL GARCIA-MARISCAL, also known as Gabriel Antonio Garcia, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1088-ALL-H -------------------- August 23, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Gabriel Garcia-Mariscal appeals the 41-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. Garcia-Mariscal argues that his sentence should not have exceeded the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Garcia-Mariscal 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50020 -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). Garcia- Mariscal’s argument is foreclosed. The judgment of the district court is AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that the judgment of the district court be affirmed and that an appellee’s brief not be required. The motion is GRANTED. AFFIRMED; MOTION GRANTED.