IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50854
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SIVERIO AGUILAR-PLATA,
also known as Jesus Lopez-Bueno,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1298-ALL
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Siverio Aguilar-Plata appeals the 51-month term of
imprisonment imposed following his guilty plea conviction of
attempting to illegally reenter the United States after removal
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).
Aguilar-Plata 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that this opinion should not be published and is not precedent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. 01-50854
-2-
removal following an aggravated felony conviction. He argues
that the sentencing provision violates the Due Process Clause.
Alternatively, Aguilar-Plata 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.
Aguilar-Plata 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). Aguilar-
Plata’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.