United States v. Reyes

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40976 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL ERNESTO REYES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-40-1 -------------------- October 25, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Paul Ernesto Reyes appeals the 46-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 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.

Reyes’ argument is foreclosed by the Supreme Court’s

decision in Almendarez-Torres v. United States, 523 U.S. 224

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40976 -2-

(1998). However, Reyes contends that Almendarez-Torres has been

overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000).

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). The

judgment of the district court is AFFIRMED.