United States v. Reyes

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40971 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE EFRAIN REYES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-241-1 -------------------- May 31, 2001

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Jose Efrain Reyes appeals his conviction and 48-month

sentence imposed following acceptance of his guilty plea to a

charge of illegal re-entry to the United States after deportation

in violation of 8 U.S.C. § 1326. Reyes first contends that his

guilty plea was involuntary and was rendered in violation of due

process because the district court did not comply with the

requirements of Fed. R. Crim. P. 11. Reyes has not shown that

the district court’s lack of compliance with Fed. R. Crim. P. 11

affected his substantial rights. See United States v. Cuevas-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40971 -2-

Andrade, 232 F.3d 440, 443-45 (5th Cir. 2000). The record

demonstrates that Reyes understood the charge and its

consequences; therefore, his plea was not rendered in violation

of due process. See United States v. Reyna, 130 F.3d 104, 112

(5th Cir 1997).

Reyes also 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 alleged in the

indictment. He acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998),

but he seeks to preserve the issue for Supreme Court review in

light of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi, 120

S. Ct. at 2361-62 & n.15; United States v. Dabeit, 231 F.3d 979,

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

Reyes’ argument is foreclosed. See Almendarez-Torres, 523 U.S.

at 235.

AFFIRMED.