United States v. Cardenas

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40573 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OBED CARDENAS, also known as Saul Rangel-Robles, also known as Abram Nava-Rangel,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-33-1 -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Obed Cardenas (“Cardenas”) appeals his sentence following

his guilty plea conviction for illegal reentry following

deportation in violation of 8 U.S.C. § 1326(a) and (b). He

argues that a prior felony conviction must be alleged in the

indictment because it is an element of the offense, rather than a

mere sentence enhancement.

Cardenas acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40573 -2-

seeks to preserve the issue for possible Supreme Court review in

the light of Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

Indeed, Cardenas’ argument is foreclosed by Almendarez-Torres.

See United States v. Dabeit, __F.3d__ (5th Cir. Oct. 30, 2000,

No. 00-10065), 2000 WL 1634264, at *4.

AFFIRMED.