United States v. Orozco-Mota ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20145
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO OROZCO-MOTA, also known as Sergio Orozco-Mota, also
known as Arturo Lopez-Gonzalez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-236-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Arturo Orozco-Mota appeals his guilty-plea conviction for
re-entering the United States illegally after deportation in
violation of 8 U.S.C. § 1326. He also appeals from his sentence
which was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). He
argues that in view of the Supreme Court’s recent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), his
sentence should be vacated because it exceeds the two-year
statutory maximum sentence for a violation of 8 U.S.C. § 1326(a).
*
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that this opinion should not be published and is not precedent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. 00-20145
-2-
Orozco-Mota also 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. Orozco-Mota acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), and states that he is raising the issue to preserve
it for possible Supreme Court review. Although the Supreme Court
noted that Almendarez-Torres may have been incorrectly decided,
the Supreme Court did not expressly overrule it in Apprendi.
Apprendi, 120 S. Ct. at 2362 & n.15. Orozco-Mota’s argument is
foreclosed by Almendarez-Torres.
AFFIRMED.