United States v. Espinosa-Hernandez

82 F. App'x 953

Opinion

PER CURIAM.

Footnotes

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Jesus Donaldo Espinosa-Hernandez appeals his guilty plea conviction of being found in the United States without permission after having been removed. He argues for the first time on appeal that the 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 and that 8 U.S.C. § 1326(b)’s felony and aggravated felony provisions are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As he acknowledges, his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000).

AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.