IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40921
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO MORENO-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-72-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Rodolfo Moreno-Cruz appeals his sentence following a guilty
plea to illegal reentry into the United States following
deportation. See 8 U.S.C. § 1326. Moreno argues that the felony
conviction that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) was an element of the offense that should have been
charged in the indictment. He 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
Court review in the light of Apprendi v. New Jersey, 120 S. Ct.
*
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that this opinion should not be published and is not precedent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. 00-40921
-2-
2348 (2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 120 S. Ct. at 2361-62 & n.15. Moreno’s argument is
foreclosed. See Almendarez-Torres, 523 U.S. at 235.
Accordingly, Moreno’s sentence is AFFIRMED.