United States v. Guzman-Najera

* 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that this opinion should not be published and is not precedent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. 02-50456
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO GUZMAN-NAJERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1813-ALL-DB
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ricardo Guzman-Najera appeals the 30-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
He contends that 8 U.S.C. § 1326(b)(2) is unconstitutional
because it treats a prior aggravated-felony conviction as a mere
sentencing factor and not an element of the offense.
Guzman-Najera acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United

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No. 02-50456
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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. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). Guzman-
Najera’s argument is foreclosed. The judgment of the district
court is AFFIRMED.

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