United States v. Rodriguez-Garcia

* 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that this opinion should not be published and is not precedent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. 00-50575
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOLANDA RODRIGUEZ-GARCIA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-99-CR-731-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Yolanda Rodriguez-Garcia appeals the 37-month sentence
imposed following her plea of guilty to a charge of being found
in the United States after deportation, a violation of 8 U.S.C.
§ 1326. She contends that the felony conviction that resulted in
her increased sentence under 8 U.S.C. § 1326(b)(2) was an element
of the offense that should have been charged in the indictment.
Rodriguez argues that Apprendi v. New Jersey, 530 U.S. 466
(2000), abrogated Almendarez-Torres v. United States, 523 U.S.

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No. 00-50575
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224 (1998). However, 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). Rodriguez’s argument is
foreclosed.
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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