IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50648
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ LUIS MUNOZ-LARA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-79-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
José Luis Munoz-Lara appeals his conviction and 60-month
sentence for being found in the United States after deportation
in violation of 8 U.S.C. § 1326. Munoz-Lara argues that the
district court erred by denying his motion to dismiss the
indictment because his prior deportation did not meet the basic
standards of due process. Munoz-Lara acknowledges that the due
process issue is foreclosed by United States v. Benitez-
Villafuerte, 186 F.3d 651 (5th Cir. 1999), cert. denied, 528 U.S.
*
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that this opinion should not be published and is not precedent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. 00-50648
-2-
1097 (2000). He seeks to preserve the issue for Supreme Court review.
He also contends that the felony conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(b)(2) is an element
of the offense that must have been charged in the indictment.
Munoz-Lara acknowledges that this argument also is foreclosed by
the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he again seeks to preserve the
issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
petition for cert. filed, (U.S. Jan. 26, 2001)(No. 00-8299).
As Munoz-Lara concedes, his arguments are foreclosed. His
conviction and sentence are AFFIRMED.