United States v. Velasquez-Rivera ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-40492
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME ASTUL VELASQUEZ-RIVERA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. M-00-CR-34-1
_________________________________________________________________
December 4, 2000
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Jaime Astul Velasquez-Rivera appeals his conviction and
41-month sentence following his plea of guilty to illegal re-entry
into the United States after deportation, a violation of 8 U.S.C.
§ 1326. Velasquez argues 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 his
indictment. He acknowledges that his argument is foreclosed by
*
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this opinion should not be published and is not precedent except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.
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for Supreme Court review in the light
of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2361-62 &
n.15; see also United States v. Dabeit, ___ F.3d ___, 2000 WL
1634264 at *4 (5th Cir. Oct. 30, 2000, No. 00-10065). Velasquez’s
argument is foreclosed. See Almendarez-Torres, 523 U.S. at 235.
A F F I R M E D.
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