IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20627
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN HUGO RODRIGUEZ-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-98-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Juan Hugo Rodriguez-Torres appeals his sentence 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). Rodriguez argues that a prior felony
conviction is an element of the offense rather than a sentencing
factor and that it must be alleged in the indictment. Rodriguez
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 light of Apprendi
*
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that this opinion should not be published and is not precedent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. 00-20627
-2-
v. New Jersey, 120 S. Ct. 2348 (2000). Although the Supreme
Court in Apprendi questioned its decision in Almendarez-Torres,
it did not overrule the case. See Apprendi, 120 S.Ct. at 2361-62
& n.15; see also United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Rodriguez’s
argument, therefore, is foreclosed.
Rodriguez additionally maintains that if Almendarez-Torres
remains good law after Apprendi, his sentence still must be
vacated because the indictment failed to allege that his prior
conviction occurred before his last deportation, as opposed to
occurring prior to being found in the United States. This
argument also is foreclosed by Almendarez-Torres, as the Supreme
Court concluded that 18 U.S.C. § 1326(b)(2), which includes the
timing requirement of the aggravated felony, sets forth a
sentencing factor and not a separate criminal offense.
Almendarez-Torres, 523 U.S. at 235. Rodriguez has failed to
demonstrate error, plain or otherwise, in the indictment. See
United States v. Meshak, 225 F.3d 556, 575 (5th Cir. 2000)
(applying plain-error review to sentencing challenge raised for
the first time on appeal), cert. denied, 121 S. Ct. 834 (2001).
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.