United States v. Maynes-Torres

* 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that this opinion should not be published and is not precedent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. 00-50660
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO MAYNES-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-568-1-H
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Antonio Maynes-Torres appeals his sentence following his
guilty plea conviction for attempted illegal re-entry after
deportation in violation of 8 U.S.C. § 1326. Maynes argues that
his sentence should not have exceeded the two-year maximum
sentence under 8 U.S.C. § 1326(a). Maynes 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 review in light of Apprendi v. New Jersey, 120 S. Ct. 2348
(2000).

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No. 00-50660
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Apprendi did not overrule Almendarez-Torres. See Apprendi,
120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Maynes’s
argument is foreclosed by Almendarez-Torres, 523 U.S. at 235.
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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