IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSENDO CARRILLO-CRUZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-516-ALL
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November 14, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rosendo Carrillo-Cruz appeals his bench-trial conviction for
illegal reentry after deportation following an aggravated felony.
He first argues that the dismissal of the original indictment for
Speedy Trial Act violations should have been with prejudice. The
district court properly considered the statutory factors of 18
U.S.C. § 3162(a)(2), and its supporting factual findings were not
clearly in error. United States v. Taylor, 487 U.S. 326, 337
*
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that this opinion should not be published and is not precedent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.
(1988). Accordingly, we find that the district court did not abuse
its discretion in dismissing the first indictment without prejudice
and in permitting reindictment. See United States v. Blevins, 142
F.3d 223, 224 (5th Cir. 1998).
Carrillo-Cruz also avers that 8 U.S.C. § 1326(b), which was
used to enhance his sentence based on his prior aggravated felony
conviction, is unconstitutional. Carrillo-Cruz acknowledges that
his argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United 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 489-90, 496; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). Carrillo-
Cruz’s argument is foreclosed. Accordingly, the judgment of the
district court is AFFIRMED.
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