United States v. Castro

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51125 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

RAUL CASTRO,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-887-ALL - - - - - - - - - - April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Raul Castro appeals his sentence following his guilty plea

conviction for illegal re-entry after deportation in violation of

8 U.S.C. § 1326. Castro argues that his sentence should not have

exceeded the two-year maximum sentence under 8 U.S.C. § 1326(a).

Castro acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

seeks to preserve the issue for Supreme Court review in light of

Apprendi v. New Jersey, 120 S. Ct. 2348 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-51125 - 2 -

Apprendi did not overrule Almendarez-Torres. See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Castro’s

argument is foreclosed by Almendarez-Torres, 523 U.S. at 235.

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.