IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41028
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN GEOVANNI DURON,
also known as Mario Ortiz Aguilar,
also known as Juan Hernandez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-158-1
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August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Edwin Geovanni Duron (“Duron”) appeals his conviction and
57-month sentence following his plea of guilty to illegal reentry
into the United States after deportation, a violation of 8 U.S.C.
§ 1326. Duron argues 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 his indictment.
Duron also argues that, pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), the indictment was defective because it did not
*
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that this opinion should not be published and is not precedent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. 00-41028
-2-
allege the timing of his prior conviction, namely that it
occurred before his last deportation. Duron acknowledges that
his first argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of decision in Apprendi because
the Supreme Court indicated in Apprendi that Almendarez- Torres
may have been wrongly decided. Because the Supreme Court has not
overruled Almendarez-Torres, this court is compelled to follow
it. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), cert. denied, 121 S. Ct. 1214 (2001). Duron’s argument is
foreclosed. See Almendarez-Torres, 523 U.S. at 235.
Duron’s argument that the indictment must allege that his
prior felony conviction occurred before his last deportation is
also without merit. Duron has not explained why an indictment
that, under Almendarez-Torres, need not allege the defendant’s
prior conviction at all is deficient for omitting the details of
that prior conviction.
AFFIRMED.