United States v. Castillo-Oropeza

* 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that this opinion should not be published and is not precedent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. 01-10621
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAYRA ELISA CASTILLO-OROPEZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:01-CR-2-ALL
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Mayra Elisa Castillo-Oropeza appeals the 71-month term of
imprisonment imposed following her guilty plea conviction of
being found in the United States after deportation in violation
of 8 U.S.C. § 1326. Castillo-Oropeza contends that 8 U.S.C.
§ 1326(a) and 8 U.S.C. § 1326(b)(2) define separate offenses.
She argues that the aggravated felony conviction that resulted in
her increased sentence was an element of the offense under
8 U.S.C. § 1326(b)(2) that should have been alleged in her
indictment. Castillo-Oropeza notes that she pleaded guilty to an

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No. 01-10621
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indictment which recited only facts and elements supporting a
charge of simple reentry under 8 U.S.C. § 1326(a), and argues
that her sentence exceeds the two-year maximum term of
imprisonment which may be imposed for that offense. Castillo-
Oropeza acknowledges that her argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but seeks to preserve the issue for Supreme
Court review in light of the decision in Apprendi v. New Jersey,
530 U.S. 466 (2000).
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), cert. denied, 121 S. Ct. 1214 (2001). Castillo-
Oropeza’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
In lieu of filing an appellee’s brief, the Government has
filed a motion to dismiss this appeal. The Government’s motion
to dismiss is DENIED. However, in light of our decision to
affirm the district court’s judgment, the Government need not
file an appellee’s brief.
AFFIRMED; MOTION TO DISMISS DENIED.

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