United States v. Saldivar-Gonzalez

* 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that this opinion should not be published and is not precedent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. 00-40305
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ ANTONIO SALDIVAR-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-417-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
José Antonio Saldivar-Gonzalez (Saldivar) appeals his
conviction and 77-month sentence following his plea of guilty to
illegal re-entry into the United States after deportation in
violation of 8 U.S.C. § 1326. Saldivar argues 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. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he seeks to preserve the issue for Supreme Court

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No. 00-40305
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review in light of Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 120 S. Ct. at 2361-62 & n.15. Saldivar’s argument is
foreclosed. See Almendarez-Torres, 523 U.S. at 235.
Accordingly, Saldivar’s conviction and sentence are AFFIRMED.

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