United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 31, 2005

Charles R. Fulbruge III Clerk No. 05-40240 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIGUEL ANGEL RODRIGUEZ-MIER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:04-CR-119-ALL --------------------

Before SMITH, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Miguel Angel Rodriguez-Mier (Rodriguez) pleaded guilty to

illegal reentry after deportation and was sentenced to 78 months

of imprisonment, three years of supervised release, and a $100

special assessment.

Rodriguez argues that, in light of Apprendi v. New Jersey,

(2000), his sentence should not have been enhanced

under

(b) because the prior conviction used to

enhance his sentence was not charged in his indictment or proved

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-40240 -2-

to a jury beyond a reasonable doubt. He argues that his sentence

should be vacated and that his case should be remanded for

resentencing under

(a), which provides for a two-

year maximum sentence. He concedes that his argument is

foreclosed by Almendarez-Torres v. United States,

(1998), and he argues that he is raising the issue to preserve it

for further review.

As Rodriguez concedes, this issue is foreclosed. See

Apprendi,

; United States v. Dabeit,

(5th Cir. 2000). However, more importantly, Rodriguez’s

argument that the indictment did not include his prior crime is

not supported by the record. The indictment in fact stated that

Rodriguez had previously been deported after being convicted of

“an aggravated felony, to wit: Delivery of a Controlled

Substance; to wit, Marijuana,” and Rodriguez pleaded guilty to

the charge stated in the indictment. Because his incorrect

assertion that the indictment did not include his prior crime is

the only basis for his argument that his sentence should be

vacated and his case remanded for resentencing in light of

Apprendi, he has not raised any error capable of being preserved

for further review. See Beasley v. McCotter,

(5th Cir. 1986) (holding that this court does not give

attorney-prepared briefs the benefit of liberal construction).

AFFIRMED.