IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40390
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO HERNANDEZ-JAIMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-856-1
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Ernesto Hernandez-Jaimez appeals from his resentencing on
remand from this court. Hernandez-Jaimez contends, as he did at
resentencing, that the aggravated-felony conviction, which
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2),
was an element of the offense that should have been alleged in
the indictment. Hernandez-Jaimez concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998). He nevertheless seeks to preserve the issue for
*
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that this opinion should not be published and is not precedent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. 01-40390
-2-
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, 496; see also United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202
(2001). Hernandez-Jaimez’s argument is therefore foreclosed.
Hernandez-Jaimez also contends that his indictment violated
the Fifth and Sixth Amendments because it lacked an allegation
that he acted with general intent. This claim is beyond the
scope of remand as it is could have been raised on the original
appeal. See United States v. Hass, 199 F.3d 749, 752 (5th Cir.
1999), cert. denied, 531 U.S. 812 (2000). Regardless, as
Hernandez-Jaimez acknowledges, the claim is foreclosed by this
court’s precedent in United States v. Guzman-Ocampo, 236 F.3d
233, 236 (5th Cir. 2000), cert. denied, 121 S. Ct. 2600 (2001),
and United States v. Berrios-Centeno, 250 F.3d 294, 299-300 (5th
Cir.), cert. denied, 122 S. Ct. 288 (2001). Accordingly, the
judgment of the district court is AFFIRMED.