IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40394
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALBERTO HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-648-1
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Represented by the Federal Public Defender, Mario Alberto
Hernandez-Hernandez (Hernandez) appeals from resentencing
following remand from this court. See United States v.
Hernandez-Hernandez, No. 99-41432 (5th Cir. Nov. 10, 2000)
(unpublished).
Hernandez contends, as he did at resentencing, that his
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.
*
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that this opinion should not be published and is not precedent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. 01-40394
-2-
Hernandez concedes that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). He nevertheless
seeks to preserve the issue for Supreme Court review in light of
the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The
Government argues that because Apprendi was issued during the
pendency of Hernandez’s initial appeal and because Hernandez
failed to raise the issue at that time, Hernandez waived the
issue. We need not decide the matter because, as the parties
agree, Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000) (noting that the Supreme Court
in Apprendi expressly declined to overrule Almendarez-Torres),
cert. denied, 121 S. Ct. 1214 (2001).
Hernandez also argues that the indictment is fundamentally
defective because it fails to allege a general intent element
and, therefore, the indictment fails to charge Hernandez with an
8 U.S.C. § 1326 offense. “[T]he sufficiency of an indictment is
a jurisdictional matter and may be raised for the first time on
appeal.” United States v. Ramirez, 233 F.3d 318, 322 (5th Cir.
2000). Hernandez concedes that his argument is foreclosed by
United States v. Berrios-Centeno, 250 F.3d 294, 299-300 (5th
Cir.), cert. denied, 122 S. Ct. 288 (2001). We are bound by our
precedent. See United States v. Short, 181 F.3d 620, 624 (5th
Cir. 1999), cert. denied, 528 U.S. 1091 (2000). Accordingly, the
district court’s judgment is AFFIRMED.