IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10706
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALONZO MORENO-AGUILAR,
also known as Alonso Moreno,
also known as Abelardo Moreno,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-363-ALL-H
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alonzo Moreno-Aguilar appeals the 84-month term of
imprisonment imposed following his guilty plea conviction of
being found in the United States after deportation in violation
of 8 U.S.C. § 1326. Moreno-Aguilar 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
*
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that this opinion should not be published and is not precedent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. 01-10706
-2-
indictment. Moreno-Aguilar notes that he 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. Moreno-
Aguilar 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). Moreno-
Aguilar’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 asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.