United States v. Sanchez-Lopez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50965 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

JORGE ALBERTO SANCHEZ-LOPEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-251-ALL-WWJ - - - - - - - - - - June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Jorge Alberto Sanchez-Lopez appeals his 41-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.

Sanchez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50965 - 2 -

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

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). Sanchez’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.