United States v. Ortiz-Gonzalez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50194 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO ORTIZ-GONZALEZ, also known as Jorge Barrientos-Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1441-ALL-DB -------------------- August 23, 2001

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

PER CURIAM:*

Julio Ortiz-Gonzalez appeals the 70-month term of

imprisonment imposed following his guilty plea conviction of

illegally reentering the United States after removal in violation

of 8 U.S.C. § 1326. Ortiz-Gonzalez argues that his sentence

should not have exceeded the two-year maximum term of

imprisonment prescribed in 8 U.S.C. § 1326(a). Ortiz-Gonzalez

acknowledges that his argument is foreclosed by the Supreme

Court’s decision in Almendarez-Torres v. United States, 523 U.S.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50194 -2-

224 (1998), but 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, 121 S. Ct. 1214 (2001). Ortiz-

Gonzalez’s argument is foreclosed. The judgment of the district

court is AFFIRMED.

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.