United States v. Garcia

101 F. App'x 483

Opinion

PER CURIAM:

*

Domingo Garcia appeals the sentence imposed following his guilty-plea conviction for being an alien unlawfully found in the United States following deportation after having been previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326. For the first time on appeal, Garcia argues that the sentencing provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Garcia acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review.

Apprendi did not overrule AlmendarezTorres. See Apprendi, 530 U.S. at 489-90. Accordingly, the judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.