IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40615
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AZZEDINE FAIDY,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:99-CR-70-1)
August 22, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Azzedine Faidy appeals from his conviction and sentence for
attempted reentry following deportation, in violation of 8 U.S.C.
§ 1326. We affirm.
Faidy argues that the evidence was insufficient to support a
finding that he attempted to reenter the United States. Because we
*
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should not be published and is not precedent except under the limited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.
draw all credibility inferences in favor of the verdict,1 we must
credit the testimony of the officers who testified that Faidy
falsely claimed to be a United States citizen when questioned on
board a vessel in Port Arthur, Texas. If his claim were true, it
would have entitled him to debark from the vessel in which he had
stowed away and to remain in the United States. In a sworn written
statement, Faidy stated that his desire to return to his wife in
the United States was “why I came back.” These facts all evidence
intent to return to the United States and efforts to do so. A
reasonable jury could have determined beyond a reasonable doubt
that Faidy attempted to enter the United States.2 The evidence was
sufficient.
Faidy next argues that the district court erred by enhancing
his offense level by 16 levels because of a prior aggravated felony
conviction. Faidy claims that the prior conviction was a
misdemeanor under state law. Faidy concedes that his argument is
foreclosed by circuit precedent but wishes to preserve the issue
for possible further review.3
1
See United States v. Cardenas-Alvarez, 987 F.2d 1129, 1132 (5th Cir.
1993).
2
See id. at 1132-33.
3
Under Fifth Circuit precedent, the state’s characterization of a crime
as a misdemeanor or felony is irrelevant. See Lopez-Elias v. Reno, 209 F.3d 788,
792 n.6 (5th Cir. 2000). Nor does it matter that a portion of the sentence is
suspended. See id. at 791. A theft offense for which the term of imprisonment
is at least one year is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G).
2
Finally, Faidy contends that the aggravated 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 and proven to the jury beyond a reasonable doubt. He
acknowledges that his argument is foreclosed by the Supreme Court’s
decision in Almendarez-Torrez v. United States,4 but he seeks to
preserve the issue for further review in light of the decision in
Apprendi v. New Jersey.5
Because the evidence was sufficient to convict Faidy, and his
other arguments are foreclosed by circuit and Supreme Court
precedent, the judgment of the district court is AFFIRMED.
4
523 U.S. 224, 247 (1998).
5
530 U.S. 466, 489-90 (2000).
3