United States v. Hernandez-Salazar ( 2001 )


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  •                IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-50273
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    ANTONIO HERNANDEZ-SALAZAR,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. DR-00-CR-666-1
    --------------------
    October 29, 2001
    Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Antonio Hernandez-Salazar appeals the 57-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
    .   Hernandez-Salazar complains that his sentence
    was enhanced pursuant to 
    8 U.S.C. § 1326
    (b)(2), which allowed the
    court to impose up to a twenty-year term of imprisonment because
    he was removed after being convicted of an aggravated felony.
    Hernandez-Salazar argues that the sentencing provision violates
    the Due Process Clause because it permitted the sentencing judge
    *
    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    that this opinion should not be published and is not precedent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.
    No. 01-50273
    -2-
    to find, under a preponderance of the evidence standard, a fact
    which increased the statutory maximum sentence to which he
    otherwise would have been exposed.    Hernandez-Salazar thus
    contends that his sentence is invalid and argues that it should
    not exceed the two-year maximum term of imprisonment prescribed
    in 
    8 U.S.C. § 1326
    (a).   Hernandez-Salazar acknowledges that his
    argument is foreclosed by the Supreme Court’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).
    Hernandez-Salazar’s argument is foreclosed.    The judgment of the
    district court is AFFIRMED.
    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.
    

Document Info

Docket Number: 01-50273

Filed Date: 10/30/2001

Precedential Status: Non-Precedential

Modified Date: 4/18/2021