IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20309
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE HERNANDEZ-BENAVIDEZ,
also known as Jose Hernandez Benavidez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-677-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
In this appeal following his guilty-plea conviction for
illegally reentering the United States after having been
deported, Jose Hernandez-Benavidez challenges the enhancement of
his sentence pursuant to 8 U.S.C. § 1326(b). He argues that use
of his prior aggravated-felony conviction to enhance his sentence
violates due process, the “jury guarantees” of the Sixth
Amendment, his right to indictment by a grand jury, his
protection from double jeopardy, and his right to a unanimous
*
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that this opinion should not be published and is not precedent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. 00-20309
-2-
jury verdict on each element of the offense. Because Hernandez-
Benavidez failed to raise his challenge in the district court,
our review is for plain error. See United States v. Meshack, 225
F.3d 556, 575 (5th Cir.), cert. denied, 121 S. Ct. 834 (2001).
In Almendarez-Torres v. United States, 523 U.S. 224 (1998),
the Supreme Court held that a prior felony conviction under
§ 1326(b)(2) was merely a sentencing factor and thus need not be
included in the indictment. In light of the clear precedent in
Almendarez-Torres, Hernandez-Benavidez has failed to show error,
plain or otherwise, in his indictment or sentence. 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.