United States v. Madrigal

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40094 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JOSÉ ANTONIO GARCIA MADRIGAL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CR-58-ALL - - - - - - - - - - August 22, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

José Antonio Garcia Madrigal appeals the 80-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of 8 U.S.C.

§ 1326. He contends that the felony conviction that resulted in

his increased sentence under 8 U.S.C. § 1326(b)(2) was an element

of the offense that should have been charged in the indictment.

Madrigal acknowledges that his argument is foreclosed by

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40094 - 2 -

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

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Madrigal’s plea agreement included a waiver of his right to

“any appeal . . . of any error which may occur surrounding the

substance, procedure, or form of the conviction and sentencing in

this case.” We need not decide whether the issue is waived

because 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, 121 S. Ct. 1214 (2001).

Madrigal’s argument is foreclosed.

AFFIRMED.