United States v. Olivares-Aguirre

* 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that this opinion should not be published and is not precedent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. 01-50378
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL OLIVARES-AGUIRRE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1342-ALL-H
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October 29, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Rafael Olivares-Aguirre appeals the 37-month term of
imprisonment imposed following his guilty plea conviction of
attempting to illegally reenter the United States after removal
in violation of 8 U.S.C. § 1326. Olivares-Aguirre complains that
his sentence was enhanced pursuant to 8 U.S.C. § 1326(b)(2),
which allowed the court to impose up to a twenty-year term of
imprisonment because he was removed after being convicted of an
aggravated felony. Olivares-Aguirre argues that the sentencing
provision violates the Due Process Clause because it permitted

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No. 01-50378
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the sentencing judge to find, under a preponderance of the
evidence standard, a fact which increased the statutory maximum
sentence to which he otherwise would have been exposed.
Olivares-Aguirre thus contends that his sentence is invalid and
argues that it should not exceed the two-year maximum term of
imprisonment prescribed in 8 U.S.C. § 1326(a). Olivares-Aguirre
acknowledges that his 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). Olivares-
Aguirre’s argument is foreclosed. The judgment of the district
court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.

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