United States v. Nunez-Flores

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 14, 2001
• Docket: 00-41388
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41388 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER NUNEZ-FLORES, also known as Javier Flores-Fernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-305-1 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Javier Nunez-Flores appeals the 72-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of 8 U.S.C. § 1326.

He contends first 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.

Nunez-Flores acknowledges that his argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41388 -2-

for Supreme Court review in light of the decision in Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90, 496; United States v. Dabeit, 231 F.3d 979,

984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).

Nunez-Flores’s argument is foreclosed.

Nunez-Flores contends also that his indictment violated the

Fifth and Sixth Amendments because it lacked an allegation that

he acted with general intent. He acknowledges that his argument

is foreclosed by this court’s precedent in United States v.

Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir. 2000), cert. denied,

121 S. Ct. 2600 (2001), and, 250 F.3d 294, 299-300 (5th Cir.

2001), petition for cert. filed, (U.S. Jul. 24, 2001) (No. 01-

5535), but he wishes to preserve the issue for review by the

Supreme Court.

In Berrios-Centeno, 250 F.3d at 299-300, the court examined

language identical to the language in the Nunez-Flores’s

indictment and held that it sufficiently alleged a general intent

to reenter. Accordingly, Nunez-Flores’s conviction and sentence

are AFFIRMED.