IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20015
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL RUIZ-MOTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-545-1
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February 12, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Juan Manuel Ruiz-Mota appeals his bench-trial conviction
for illegal re-entry 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)(1), and its supporting factual
findings are not clearly in error. United States v. Taylor, 487
*
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that this opinion should not be published and is not precedent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. 02-20015
-2-
U.S. 326, 337 (1988). Accordingly, 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).
Ruiz 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. Ruiz acknowledges that his
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 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). Ruiz’ argument is foreclosed. Accordingly,
the judgment is AFFIRMED.