United States v. Pena

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41460 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER PENA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-864-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Javier Pena appeals his 30-month prison 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 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.

Pena 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 his contention for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41460 -2-

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

Jersey, 530 U.S. 466 (2000). Apprendi, however, did not overrule

Almendarez-Torres. See Apprendi, 530 U.S. at 490; United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied,

531 U.S. 1202 (2001). Pena’s argument is foreclosed. The

judgment of the district court is AFFIRMED.