United States v. Morales

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-41334
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41334 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO HERNANDEZ MORALES, also known as Francisco Hernandez, also known as Francisco Morales,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-306-1 - - - - - - - - - - August 22, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Francisco Hernandez Morales appeals his conviction and

sentence for illegal reentry by a previously deported alien, in

violation of 8 U.S.C. § 1326. He contends that the felony

conviction that resulted in his increased sentence under 8 U.S.C.

§ 1326(b)(2) is an element of the offense that should have been

charged in the indictment. Morales acknowledges that this

argument is foreclosed by the Supreme Court’s decision in

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41334 -2-

seeks to raise the issue in light of the Supreme Court’s decision

in Apprendi v. New Jersey, 530 U.S. 466 (2000), which he asserts

calls the Almendarez-Torres decision into question. Apprendi did

not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-

90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),

cert. denied, 121 S. Ct. 1214 (2001). Accordingly, Morales’ only

argument on appeal is foreclosed. His conviction and sentence

are AFFIRMED.