United States v. Lopez-Solis

* 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that this opinion should not be published and is not precedent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. 00-40783
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTEBAN LOPEZ-SOLIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-49-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Esteban Lopez-Solis ("Lopez) appeals his conviction and
70-month sentence following his guilty plea to illegal reentry
after deportation in violation of 8 U.S.C. § 1326. Lopez 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 possible Supreme Court review in light of Apprendi

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No. 00-40783
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v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). Apprendi
did not overrule Almendarez-Torres. See Apprendi, 120 S. Ct. at
2362-63; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), petition for cert. filed, (U.S. Jan. 26, 2001)(No.
00-8299). Lopez's argument is foreclosed. See Almendarez-
Torres, 523 U.S. at 235. Accordingly, Lopez's conviction and
sentence are AFFIRMED.
AFFIRMED.

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