United States v. Hernandez-Lazo

* 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that this opinion should not be published and is not precedent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. 00-50047
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ULISES HERNANDEZ-LAZO,
also known as Ulises Hernandez,
also known as Ulises Lazo,
also known as Ulises Lazo Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-195-ALL-HFG
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ulises Hernandez-Lazo challenges as unconstitutional the
70-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-Lazo contends that
8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2) define separate
offenses. He argues that the aggravated felony conviction that
resulted in his increased sentence was an element of the offense

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No. 00-50047
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under 8 U.S.C. § 1326(b)(2) that should have been alleged in his
indictment. Hernandez-Lazo notes that he pleaded guilty to an
indictment which recited only facts and elements supporting a
charge of simple reentry under 8 U.S.C. § 1326(a), and argues
that his sentence exceeds the two-year maximum term of
imprisonment which may be imposed for that offense. Hernandez-
Lazo 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, 121 S. Ct. 1214 (2001).
Hernandez-Lazo’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.

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