USA vs. Cantu-Gonzalez, (5th Cir. 2001)

Docket Number: 01-10347

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10347 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICOLAS CANTU-GONZALEZ, Defendant-Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 5:00-CR-106-1-C August 23, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM: * Nicolas Cantu-Gonzalez appeals the 71-month term of imprisonment imposed following his guilty plea conviction of being found in the United States after removal in violation of 8 U.S.C. § 1326. Cantu-Gonzalez argues that his sentence should not have exceeded the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Cantu-Gonzalez acknowledges that his argument is foreclosed by the Supreme CourtÂ’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). CantuGonzalezÂ’s argument is foreclosed. The judgment of the district court is AFFIRMED.

In lieu of filing an appelleeÂ’s brief, the Government has filed a motion to dismiss this appeal. The GovernmentÂ’s motion to dismiss is DENIED. However, in light of our decision to affirm the district courtÂ’s judgment, the Government need not file an appelleeÂ’s brief.

AFFIRMED; MOTION TO DISMISS DENIED.

No. 01-10347