IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10922
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO CASTELAN-PEREZ,
also known as Rigoberto Gonzalez Perez,
also known as Mariobel Castelan Mondragon,
also known as Mario Castellan Monaragon,
also known as Israel Castelan,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CR-47-1-P
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Mario Castelan-Perez appeals the 70-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. Castelan-Perez 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.
*
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that this opinion should not be published and is not precedent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. 01-10922
-2-
§ 1326(b)(2) that should have been alleged in his indictment.
Castelan-Perez 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. Castelan-Perez 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). Castelan-
Perez’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.