IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50495
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDY OSIRIS SUAREZ-BACA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-724-ALL-EP
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Fredy Osiris Suarez-Baca appeals the 41-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. He contends that the sentence is invalid
because it exceeds the two-year maximum term of imprisonment
prescribed in 8 U.S.C. § 1326(a).
Suarez-Baca complains that his sentence was improperly
enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior
removal following an aggravated felony conviction. He argues
*
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that this opinion should not be published and is not precedent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. 01-50495
-2-
that the sentencing provision violates the Due Process Clause.
Alternatively, Suarez-Baca 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.
Suarez-Baca acknowledges that his arguments are foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but seeks to preserve the issues 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). Suarez-
Baca’s arguments are 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.
Suarez-Baca has filed a motion for leave to file a pro se
supplemental brief. By accepting the assistance of counsel,
Suarez-Baca has waived any opportunity to present pro se
pleadings on direct appeal. See Myers v. Johnson, 76 F.3d 1330,
1335 (5th Cir. 1996); 5th Cir. R. 28.7. The motion is DENIED.
AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION TO
FILE A SUPPLEMENTAL BRIEF DENIED.