IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20792
c/w No. 01-40777
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO GARCIA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-104-2
USDC No. 01-CR-95-1
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Ramiro Garcia-Hernandez (Garcia) appeals the 18-month prison
sentence and three-year term of supervised release imposed
following his plea of guilty to the charge of being found in the
United States after having been deported in violation of 8 U.S.C.
§ 1326 and the revocation of a previously-imposed supervised-
release term based upon the same conduct. He contends for 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that this opinion should not be published and is not precedent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. 01-20792
c/w No. 01-40777
-2-
first time on appeal that 8 U.S.C. § 1326(b)(2) is
unconstitutional because it does not require the prior aggravated
felony conviction used to increase his sentence to be proven as
an element of the offense. He argues that his conviction should
be reformed to the lesser-included offense in
8 U.S.C. § 1326(a) and that he should be resentenced to no more
than two years’ imprisonment and one year of supervised release.
Garcia 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 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). Garcia’s
argument is foreclosed. The judgment of the district court is
AFFIRMED.