IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50422
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL VALENZUELA-URIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-00-CR-385-ALL-F
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Saul Valenzuela-Urias appeals the 71-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. Valenzuela-Urias complains that his sentence
was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based
on his prior deportation following an aggravated felony
conviction. Valenzuela-Urias argues that the sentencing
provision violates the Due Process Clause because it permitted
the sentencing judge to find, under a preponderance of the
*
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that this opinion should not be published and is not precedent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. 01-50422
-2-
evidence standard, a fact which increased the statutory maximum
sentence to which he otherwise would have been exposed.
Valenzuela-Urias thus contends that his sentence is invalid and
argues that it should not exceed the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a). Valenzuela-Urias
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). Valenzuela-
Urias’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.