IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40817
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFRAIN ACOSTA-CANALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-81-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Efrain Acosta-Canales (“Acosta-Canales”) appeals his
sentence following his guilty plea conviction for illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a) and (b).
He argues that a prior felony conviction must be alleged in the
indictment because it is an element of the offense, rather than a
mere sentence enhancement.
Acosta-Canales 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
*
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that this opinion should not be published and is not precedent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. 00-40817
-2-
in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Indeed, Acosta-Canales’ argument is foreclosed by
Almendarez-Torres. 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.