IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-50149
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO AGUILERA-AYALA,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
USDC No. P-99-CR-275-1-FB
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March 21, 2001
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Fernando Aguilera-Ayala appeals his conviction and 77-month
sentence following his plea of guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326. Aguilera 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. This argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
Although the Supreme Court has questioned its ruling in Almendarez-
*
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this opinion should not be published and is not precedent except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.
Torres, it has not been overruled by the Supreme Court. See
Apprendi v. New Jersey, 120 S.Ct. 2348, 2361-62 & n.15 (2000);
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
petition for cert. filed (U.S. Jan. 26, 2001)(No. 00-8299).
Aguilera’s argument is foreclosed.
In the alternative, Aguilera contends that because he did not
admit to his prior felony during his rearraignment, his case is
distinguishable from Almendarez-Torres. He has failed to show
plain error arising from the district court’s application of
Almendarez-Torres. See United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994)(en banc). Accordingly, Aguilera’s
conviction and sentence are
A F F I R M E D.
2