IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21163
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CIPRIANO BARRAZA-CARRILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-38-1
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Cipriano Barraza-Carrillo appeals the 33-month sentence
imposed following his plea of guilty to a charge of being found
in the United States after having been deported in violation of
8 U.S.C. § 1326. For the first time on appeal, Barraza-Carrillo
argues that the sentencing provision of 8 U.S.C. § 1326(b) is
unconstitutional in light of the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
*
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that this opinion should not be published and is not precedent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. 01-21163
-2-
Barraza-Carrillo acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review.
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).
Barraza-Carrillo’s argument is foreclosed. The judgment of the
district court is AFFIRMED.