IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10698
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO CHAVEZ-MAGANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:01-CR-3-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Mario Chavez-Magana appeals the 71-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. Chavez-Magana 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.
Chavez-Magana notes that he pleaded guilty to an indictment which
*
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that this opinion should not be published and is not precedent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. 01-10698
-2-
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. Chavez-Magana 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). Chavez-
Magana’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.