IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20318
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME ALBERTO ARGUETA-VENTURA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-596-1
--------------------
October 15, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Jaime Alberto Argueta-Ventura appeals the 57-month sentence
imposed following his plea of guilty to illegal reentry into in
the United States after deportation, a violation of 8 U.S.C.
§ 1326.
Argueta-Ventura contends that his prior aggravated-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. Argueta-Ventura acknowledges that his
*
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that this opinion should not be published and is not precedent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. 00-20318
-2-
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), but he 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). Argueta-Ventura’s argument is
foreclosed.
Argueta-Ventura argues that the district court erred in
denying him a downward departure based on his cultural
assimilation into this country in the mistaken belief that it
lacked the authority to depart. The record does not support
appellant’s argument. As we read the record, the district court
denied the downward departure because it concluded that the
departure was not justified under the circumstances.
For the above reasons, we affirm appellant’s conviction and
sentence.
AFFIRMED.