IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50956
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROBERTO ORTIZ-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-500-ALL
--------------------
April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Roberto Ortiz-Hernandez appeals the 46-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. Ortiz-Hernandez 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. Ortiz-Hernandez argues that the sentencing provision
violates the Due Process Clause because it permitted the
sentencing judge to find, under a preponderance of the evidence
*
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that this opinion should not be published and is not precedent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. 01-50956
-2-
standard, a fact which increased the statutory maximum sentence
to which he otherwise would have been exposed. Ortiz-Hernandez
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).
Pursuant to a written plea agreement, Ortiz-Hernandez waived
the right to appeal his sentence. Ortiz-Hernandez does not
challenge the validity of the waiver provision, and we are
satisfied that the waiver of appeal was voluntarily, knowingly,
and intelligently made. Ortiz-Hernandez’s argument that his
waiver should not be enforced due to public policy concerns is
without merit. Therefore, to the extent Ortiz-Hernandez’s
argument challenges his sentence, the appeal is DISMISSED.
To the extent Ortiz-Hernandez’s argument may be construed as
challenging the validity of his conviction, it is not waived.
However, Ortiz-Hernandez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). He 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).
Accordingly, 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.
No. 01-50956
-3-
DISMISSED IN PART; AFFIRMED IN PART; MOTION GRANTED.