United States v. Chavez-Jacinto

* 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that this opinion should not be published and is not precedent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. 01-41391
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRIO CHAVEZ-JACINTO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-773-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Demetrio Chavez-Jacinto appeals the 70-month sentence
imposed following his plea of guilty to a charge of being found
in the United States after having been deported in violation of
8 U.S.C. § 1326. For the first time on appeal, Chavez-Jacinto
argues that the sentencing provisions of 8 U.S.C. § 1326(b)(1)
& (2) are unconstitutional in light of the Supreme Court’s
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).

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No. 01-41391
-2-
Chavez-Jacinto acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review.
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, 531 U.S. 1202 (2001). Chavez-
Jacinto’s argument is foreclosed. The judgment of the district
court is AFFIRMED.

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