United States v. Castro-Rodriguez

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50466 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIO CASTRO-RODRIGUEZ, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1858-ALL-H -------------------- October 29, 2001 Before WIENER, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* Mario Castro-Rodriguez appeals the 70-month term of imprisonment imposed following his guilty plea conviction of attempting to illegally reenter the United States after removal in violation of 8 U.S.C. § 1326. Castro-Rodriguez 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. Castro-Rodriguez argues that the sentencing provision violates the Due Process Clause because it permitted * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50466 -2- the sentencing judge to find, under a preponderance of the evidence standard, a fact which increased the statutory maximum sentence to which he otherwise would have been exposed. Castro- Rodriguez 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). Castro-Rodriguez 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). Castro- Rodriguez’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.