United States v. Salinas-Calderon ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10898
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO SALINAS-CALDERON,
also known as Gerardo Calderon Salinas,
also known as Omar Chacon,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-474-1-D
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Gerardo Salinas-Calderon appeals his guilty plea conviction
of being found in the United States after removal in violation of
8 U.S.C. § 1326. He argues that his guilty plea was involuntary.
Salinas-Calderon contends that the district court failed to
advise him during the plea colloquy that a prior aggravated
felony conviction is an element of the offense under 8 U.S.C.
§ 1326(b)(2), which the government would have to prove to a jury
beyond a reasonable doubt. Salinas-Calderon acknowledges that
*
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that this opinion should not be published and is not precedent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. 01-10898
-2-
his argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 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, 531 U.S. 1202 (2001). Salinas-
Calderon’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion asking this court to dismiss this appeal or, in
the alternative, to summarily affirm the district court’s
judgment. The Government’s motion to dismiss is DENIED. The
motion for a summary affirmance is GRANTED. The Government need
not file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
AFFIRMANCE GRANTED.