IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50450
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME VEGA-DEL TORO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-146-ALL-H
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jaime Vega-Del Toro appeals the 70-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. Vega-Del Toro complains that his sentence was
enhanced pursuant to 8 U.S.C. § 1326(b)(2), which allowed the
court to impose up to a twenty-year term of imprisonment because
he was removed after being convicted of an aggravated felony.
Vega-Del Toro argues that the sentencing provision violates the
Due Process Clause because it permitted the sentencing judge to
*
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that this opinion should not be published and is not precedent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. 01-50450
-2-
find, under a preponderance of the evidence standard, a fact
which increased the statutory maximum sentence to which he
otherwise would have been exposed. Vega-Del Toro thus contends
that his sentence is invalid and argues that it should not exceed
the two-year maximum term of imprisonment prescribed in 8 U.S.C.
§ 1326(a). Vega-Del Toro 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). Vega-Del
Toro’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.