United States v. Oyevides-Jimenez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40515
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROLANDO OYEVIDES-JIMENEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-02-CR-800-1
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Rolando Oyevides-Jimenez appeals his guilty-plea conviction
for illegal reentry into the United States following an
aggravated felony conviction in violation of 8 U.S.C. § 1326.
For the first time on appeal, Oyevides-Jimenez 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. 03-40515
-2-
Oyevides-Jimenez 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). Oyevides-
Jimenez’s argument is foreclosed. The judgment of the district
court is AFFIRMED.

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