United States v. Hernandez-Hernandez

Opinion

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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-648-1 -------------------- 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(unpublished).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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.