IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50560
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RAMON BALTIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-98-CR-144-1-F
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Ramon Baltier appeals the 57-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.
Baltier failed to raise this issue in the district court and
therefore his claim is reviewed for plain error. See United
*
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that this opinion should not be published and is not precedent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. 00-50560
-2-
States v. Olano, 507 U.S. 725, 730-37 (1993). Baltier
acknowledges that his argument is foreclosed by the Supreme
Court’s decision in 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, 120 S.
Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S.Ct. 1214( 2001). Baltier’s
argument is foreclosed and no plain error occurred. The judgment
of the district court is AFFIRMED.