United States v. Abarca-Venegas ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10986
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO ABARCA-VENEGAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:00-CR-22-1-C
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Ricardo Abarca-Venegas (Abarca) appeals his conviction and
96-month sentence following his plea of guilty to illegal
re-entry into the United States after deportation in violation of
8 U.S.C. § 1326. Abarca 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
the indictment. He acknowledges that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for Supreme Court review in light
*
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that this opinion should not be published and is not precedent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. 00-10986
-2-
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. Abarca’s argument is foreclosed. See
Almendarez-Torres, 523 U.S. at 235. Accordingly, Abarca’s
conviction and sentence are AFFIRMED.