IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40886
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN PINA-CLIVILLE
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-204-1
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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, in violation of 8 U.S.C. § 1326(a) and (b)(2), Joaquin
Pina-Cliville (Pina) argues that a prior felony conviction is an
element of the offense of illegal reentry and not merely a
sentencing factor. Pina 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 Supreme Court
review in the light of Apprendi v. New Jersey, 120 S. Ct. 2348
*
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that this opinion should not be published and is not precedent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. 00-40886
-2-
(2000), wherein the Supreme Court stated that it was arguable
that Almendarez-Torres was decided incorrectly. In light of the
clear precedent of Almendarez-Torres, Pina fails to show that his
sentence should be vacated. See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), petition for cert. filed, (Jan.
26, 2001)(No. 00-8299).
The judgment of the district court is AFFIRMED.