IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41036
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ALANIS-PERALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-136-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
David Alanis-Perales appeals his guilty-plea conviction and
sentence for being found in the United States following
deportation, in violation of 8 U.S.C. § 1326.
Alanis-Perales 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. Alanis-Perales 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that this opinion should not be published and is not precedent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. 00-41036
-2-
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, 530 U.S. at 489-90;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001). Alanis-Perales’s argument is
foreclosed.
Alanis-Perales also argues that his indictment was defective
because it did not allege that his prior conviction occurred
before his last deportation, as opposed to prior to his being
found in the United States. Based on the Supreme Court’s
decision in Apprendi, Alanis-Perales argues that the timing of
his prior conviction is an element of the offense under 8 U.S.C.
§ 1326(b)(2), which must be alleged in the indictment. Alanis-
Perales’s argument is foreclosed. In Almendarez-Torres, the
Supreme Court held that § 1326(b)(2), which includes the timing
requirement, is a sentencing factor and not a separate criminal
offense. Almendarez-Torres, 523 U.S. at 235.
The judgment of the district court is AFFIRMED.