IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10158
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO JIMENEZ-VILLAREAL, also known as Martin
Jimenez-Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-265-ALL-L
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Jimenez-Villareal, also known as Martin Jimenez-
Hernandez, appeals the 41-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.
*
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that this opinion should not be published and is not precedent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. 01-10158
-2-
Jimenez-Villareal 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, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; see also United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Jimenez-Villareal’s argument is foreclosed.
The Government has filed a motion seeking dismissal of this
appeal as frivolous, or a summary affirmance of the district
court’s judgment without further briefing. Alternatively, the
Government seeks an extension of time in which to file an appeal
brief. This appeal is not frivolous. However, because the sole
issue raised on appeal is foreclosed by precedent, the
Government’s motion for summary affirmance of the district
court’s judgment is GRANTED and the district court’s judgment is
AFFIRMED. All other relief sought in the Government’s motion is
DENIED.
GOVERNMENT’S MOTION GRANTED IN PART, DENIED IN PART; AFFIRMED.