USA vs. Castaneda-Gutierrez, (5th Cir. 2001)
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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. 00-41405 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSÉ CASTANEDA-GUTIERREZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-801-ALL July 19, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM: * Jos§ 1326. He contends that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in the indictment.
Castaneda-Gutierrez acknowledges that his argument is foreclosed by the Supreme CourtÂ’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 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).
Castaneda-GutierrezÂ’s argument is foreclosed. The judgment of the district court is AFFIRMED.
No. 00-41405
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff-Appellee, v. Khamis Khalil Dabeit, Defendant-Appellant,, 231 F.3d 979 (5th Cir. 2000)
- U.S. Code - Title 8: Aliens and Nationality - 8 USC 1326 - Sec. 1326. Reentry of removed aliens
- U.S. Supreme Court - Almendarez-Torres v. United States, 523 U.S. 224 (1998)
- U.S. Supreme Court - Apprendi v. New Jersey, 530 U.S. 466 (2000)
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