IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10814
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENCIO ZUNIGA-SOLIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-33-ALL-C
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Florencio Zuniga-Solis appeals the 51-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. Zuniga-Solis 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. Zuniga-Solis notes that he pleaded guilty to an
*
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that this opinion should not be published and is not precedent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. 01-10814
-2-
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. Zuniga-Solis
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). Zuniga-
Solis’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 to dismiss this appeal. The Government’s motion
to dismiss is DENIED. However, in light of our decision to
affirm the district court’s judgment, the Government need not
file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED.