United States v. Cruz-Islas

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-41153 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MANUEL CRUZ-ISLAS, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-263-1 -------------------- August 21, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Manuel Cruz-Islas appeals the 77-month sentence imposed following his plea of guilty to a charge of illegal entry into the United States after deportation in 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. Cruz-Islas acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41153 -2- States, 523 U.S. 224 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 490; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Cruz-Islas’s argument is foreclosed. The judgment of the district court is AFFIRMED.