United States v. Torres-Esparza

* 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that this opinion should not be published and is not precedent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. 00-50856
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO TORRES-ESPARZA, also known as Armando Esparza,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-00-CR-104-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Armando Torres-Esparza appeals the 57-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 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.
Torres acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

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No. 00-50856
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seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Torres’ plea agreement included a waiver of his right to
appeal his sentence except for an upward departure from the
Sentencing Guidelines range found by the district court. He
asserts that the waiver does not preclude our consideration of
the foregoing issue. Furthermore, the district court did not
advise Torres of his waiver of the right to appeal as required by
Fed. R. Crim. P. 11(c)(6). We need not decide whether the issue
is waived because 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). Torres’ 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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