United States v. Esquinca-Mejia

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20766
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDGAR ESQUINCA-MEJIA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-54-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Edgar Esquinca-Mejia appeals the 77-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
He contends that the aggravated-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.
Esquinca-Mejia acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United

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No. 00-20766
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States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 120 S. Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Esquinca-
Mejia’s argument is foreclosed. The judgment of the district
court is AFFIRMED.

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