United States v. Garcia-Cavazos

* 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that this opinion should not be published and is not precedent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. 00-40278
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONRADO GARCIA-CAVAZOS, Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-445-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Conrado Garcia-Cavazos appeals his guilty-plea conviction
for attempting to reenter the United States illegally after
deportation in violation of 8 U.S.C. § 1326. He argues that in
view of the Supreme Court’s recent decision in Apprendi v. New
Jersey, 120 S. Ct. 2348, 2362-63 (2000), his sentence should be
vacated because it exceeds the two-year statutory maximum
sentence for a violation of 8 U.S.C. § 1326(a). Garcia-Cavazos
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), and states that he is

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No. 00-40278
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raising the issue to preserve it for possible Supreme Court
review. Although the Supreme Court noted that Almendarez-Torres
may have been incorrectly decided, the Supreme Court did not
expressly overrule it in Apprendi. Apprendi, 120 S. Ct. at 2362
& n.15. Garcia-Cavazos’s argument is foreclosed by Almendarez-
Torres.
AFFIRMED.

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