United States v. Rodriguez-Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50575 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

YOLANDA RODRIGUEZ-GARCIA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. DR-99-CR-731-1 - - - - - - - - - - June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Yolanda Rodriguez-Garcia appeals the 37-month sentence

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

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

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

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

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

Rodriguez argues that Apprendi v. New Jersey, 530 U.S. 466

(2000), abrogated 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50575 - 2 -

224 (1998). However, 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). Rodriguez’s argument is

foreclosed.

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.