United States v. Chavez-Ibarra

* 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that this opinion should not be published and is not precedent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. 00-50058
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR HUGO CHAVEZ-IBARRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DP-99-CR-1316-1-DB
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October 19, 2000
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Victor Hugo Chavez-Ibarra appeals his guilty-plea conviction
for illegal reentry into the United States 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 § 1326(a). Chavez-Ibarra acknowledges that his
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998), and states that he is raising the issue to

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No. 00-50058
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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. Chavez-
Ibarra’s argument is foreclosed by Almendarez-Torres.
AFFIRMED.

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