IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50842
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MARMOLEJO-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-890-ALL-ECP
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Juan Marmolejo-Rodriguez appeals the 51-month term of
imprisonment imposed following his guilty plea conviction of
attempting to illegally reenter the United States after
deportation in violation of 8 U.S.C. § 1326. Marmolejo-Rodriguez
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. Marmolejo-Rodriguez notes that he
*
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that this opinion should not be published and is not precedent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. 01-50842
-2-
pleaded guilty to an indictment which 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. Marmolejo-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, 531 U.S. 1202 (2001). Marmolejo-
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.