IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50649
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS PUEBLA-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-53-1
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Jesus Puebla-Hernandez appeals the 46-month sentence imposed
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of 8 U.S.C. § 1326.
He contends 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.
Puebla-Hernandez acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
*
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that this opinion should not be published and is not precedent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. 00-50649
-2-
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 120 S. Ct. 2348 (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). Puebla-Hernandez’s argument is foreclosed.
In his second issue, Puebla-Hernandez asserts that his prior
conviction for transporting aliens does not constitute an
aggravated-felony conviction for purposes of the sixteen-level
increase in his base offense level under U.S.S.G. § 2L1.2. As
Puebla-Hernandez concedes, this court has already determined that
transporting aliens constitutes an aggravated felony. See United
States v. Monjaras-Castaneda, 190 F.3d 326, 331 (5th Cir. 1999),
cert. denied, 528 U.S. 1194 (2000). Again, he seeks only to
preserve the issue for Supreme Court review.
The judgment of the district court is AFFIRMED.