United States v. Brizuela-Paz

* 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that this opinion should not be published and is not precedent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. 00-20824
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERSON OBED BRIZUELA-PAZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-173-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Jerson Obed Brizuela-Paz appeals the 71-month sentence
imposed following his plea of guilty to 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.
Brizuela 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

-- 1 of 2 --

No. 00-20824
-2-
review in light of the decision in Apprendi v. New Jersey, 530
U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Brizuela’s argument is foreclosed. The judgment of the district
court is AFFIRMED.

-- 2 of 2 --