United States v. Murillo-Urbina

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 23, 1998
• Docket: 97-50744
• Status: Unpublished

Opinion

CORRECTED

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 97-50744 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MURILLO-URBINA,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-97-CR-246-ALL) ______________________________________________ March 17, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Juan Murillo-Urbina appeals from his guilty plea conviction

for illegally reentering the United States after deportation in

violation of 8 U.S.C. § 1326. He argues for the first time on

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. appeal that the district court erred in sentencing him above the

two-year statutory term of imprisonment for “simple” illegal

reentry as provided for in 8 U.S.C. § 1326(a) because § 1326(b) is

a separate offense and, thus, his prior felony conviction is an

element that must be alleged in the indictment.

A prior felony conviction is not an element of the offense

which had to be alleged in the indictment. United States v.

Vasquez-Olvera, 999 F.2d 943, 944-47 (5th Cir. 1993). One panel

may not overrule the decision of another panel of this circuit.

United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991). Nor

does the grant of certiorari in United States v. Almendarez-Torres,

113 F.3d 515 (5th Cir. 1996), cert. granted, 117 S. Ct. 1333

(1997), vacate our prior precedent. See Wicker v. McCotter, 798

F.2d 155, 157-58 (5th Cir. 1986). Urbina has failed to establish

error, much less plain error, for his newly lodged argument.

Accordingly, the judgment of the district court is AFFIRMED.

Urbina’s motion to stay the appeal pending the Supreme Court’s

decision in Almendarez-Torres, is DENIED.

AFFIRMED. MOTION DENIED.