United States v. Jimenez-Hernandez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50822
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER JIMENEZ-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-459-ALL-DB
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February 21, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Javier Jimenez-Hernandez appeals the 46-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. He contends that the sentence is invalid
because it exceeds the two-year maximum term of imprisonment
prescribed in 8 U.S.C. § 1326(a).
Jimenez-Hernandez complains that his sentence was improperly
enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior
removal following an aggravated felony conviction. He argues
*
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that this opinion should not be published and is not precedent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. 01-50822
-2-
that the sentencing provision violates the Due Process Clause.
Alternatively, Jimenez-Hernandez contends that 8 U.S.C. § 1326(a)
and 8 U.S.C. § 1326(b)(2) define separate offenses. He argues
that the aggravated felony conviction that resulted in his
increased sentence was an element of the offense under 8 U.S.C.
§ 1326(b)(2) that should have been alleged in his indictment.
Jimenez-Hernandez acknowledges that his arguments are foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but seeks to preserve the issues 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). Jimenez-
Hernandez’s arguments are 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.