IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40050
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO BARRERA-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-339-1
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Mario Alberto Barrera-Morales appeals the 77-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. He contends for the 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
*
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that this opinion should not be published and is not precedent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. 02-40050
- 2 -
included offense in 8 U.S.C. § 1326(a) and that he should be
resentenced to no more than 2 years of imprisonment.
Barrera-Morales 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). Barrera-
Morales’ argument is foreclosed. The judgment of the district
court is AFFIRMED.