IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10889
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR MENDOZA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-120-1-D
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Cesar Mendoza-Hernandez (“Mendoza-Hernandez”) appeals his
sentence following his guilty plea conviction for illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a) and
(b)(2). He argues that a prior felony conviction must be alleged
in the indictment because it is an element of the offense, rather
than a mere sentence enhancement.
Mendoza-Hernandez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he seeks to preserve the issue for possible Supreme
*
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that this opinion should not be published and is not precedent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. 00-10889
-2-
Court review in the light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Indeed, Mendoza-Hernandez’ argument is foreclosed by
Almendarez-Torres. See United States v. Dabeit, 231 F.3d 979,
984 (5th Cir. 2000), petition for cert. filed, (U.S. Jan. 26,
2001)(No. 00-8299).
AFFIRMED.