United States v. Pruneda-Meraz

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50794 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN LUIS PRUNEDA-MERAZ, also known as Juan Luis Meraz-Pruneda, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-01-CR-212-ALL -------------------- February 21, 2002 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. PER CURIAM:* Juan Luis Pruneda-Meraz appeals the 70-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. He contends that the sentence is invalid because it exceeds the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Pruneda-Meraz complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50794 -2- deportation following an aggravated felony conviction. He argues that the sentencing provision violates the Due Process Clause. Alternatively, Pruneda-Meraz 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. Pruneda-Meraz acknowledges that his arguments are foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve the issues 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). Pruneda- Meraz’s arguments are 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.