United States v. Hernandez-Morales ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50732
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS HERNANDEZ-MORALES,
also known as Manuel Hernandez-Saenz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-456-ALL-DB
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Carlos Hernandez-Morales appeals the 46-month term of
imprisonment imposed following his guilty plea conviction of
being found in the United States after removal in violation of
8 U.S.C. § 1326. Hernandez-Morales complains that his sentence
was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based
on his prior removal following an aggravated felony conviction.
Hernandez-Morales argues that the sentencing provision violates
the Due Process Clause because it permitted the sentencing judge
to find, under a preponderance of the evidence standard, a fact
*
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that this opinion should not be published and is not precedent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. 01-50732
-2-
which increased the statutory maximum sentence to which he
otherwise would have been exposed. Hernandez-Morales thus
contends that his sentence is invalid and argues that it should
not exceed the two-year maximum term of imprisonment prescribed
in 8 U.S.C. § 1326(a). Hernandez-Morales acknowledges that 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). Hernandez-
Morales’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
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.