United States v. Olvera-Vitela

* 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this opinion should not be published and is not precedent except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. 04-40163
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO OLVERA-VITELA, also known as Natalio
Avalos-Rodriguez, also known as Martin Guzman-Garcia, also
known as Pedro Morales-Dominguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-1371-1
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
Gerardo Olvera-Vitela (Olvera) appeals his guilty-plea
conviction and sentence for being found present in the United
States following deportation and removal, without having obtained
the consent of the Attorney General or the Secretary of the
Department of Homeland Security. He argues for the first time on
appeal that 8 U.S.C. § 1326(b) is unconstitutional because it
does not require the prior aggravated felony conviction used to
United States Court of Appeals
Fifth Circuit
F I L E D
August 18, 2004
Charles R. Fulbruge III
Clerk

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No. 04-40163
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increase his sentence to be proven as an element of the offense.
He contends that his conviction should be reformed to the lesser
included offense in 8 U.S.C. § 1326(a) and that he should be
resentenced to no more than two years of imprisonment.
Olvera acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he 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. Apprendi, 530
U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000). Olvera’s argument is foreclosed. The judgment of
the district court is AFFIRMED.

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