IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10062
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EPIFANIO ORTEGA-BARRAZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-37-1-C
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Epifanio Ortega-Barraza appeals the 46-month term of
imprisonment imposed following his guilty plea conviction of
being found in the United States after deportation in violation
of 8 U.S.C. § 1326. Ortega-Barraza contends that 8 U.S.C.
§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses. He
argues that the aggravated felony conviction that resulted in his
increased sentence was an element of the offense under 8 U.S.C.
§ 1326(b)(2) that should have been alleged in his indictment.
Ortega-Barraza notes that he pleaded guilty to an indictment
*
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that this opinion should not be published and is not precedent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. 01-10062
-2-
which recited only facts and elements supporting a charge of
simple reentry under 8 U.S.C. § 1326(a), and argues that his
sentence exceeds the two-year maximum term of imprisonment which
may be imposed for that offense. Ortega-Barraza acknowledges
that his argument is foreclosed by the Supreme Court’s decision
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
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). Ortega-
Barraza’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 to dismiss this appeal. The Government’s motion
to dismiss is DENIED. However, in light of our decision to
affirm the district court’s judgment, the Government need not
file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED.