United States v. Rodriguez-Torres

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 13, 2001
• Docket: 00-20627
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20627 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN HUGO RODRIGUEZ-TORRES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-98-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Juan Hugo Rodriguez-Torres appeals his sentence following

his guilty-plea conviction for illegally reentering the United

States after having been deported, in violation of 8 U.S.C.

§ 1326(a) and (b)(2). Rodriguez argues that a prior felony

conviction is an element of the offense rather than a sentencing

factor and that it must be alleged in the indictment. Rodriguez

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for possible Supreme Court review in light of Apprendi

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20627 -2-

v. New Jersey, 120 S. Ct. 2348 (2000). Although the Supreme

Court in Apprendi questioned its decision in Almendarez-Torres,

it did not overrule the case. See Apprendi, 120 S.Ct. at 2361-62

& n.15; see also United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Rodriguez’s

argument, therefore, is foreclosed.

Rodriguez additionally maintains that if Almendarez-Torres

remains good law after Apprendi, his sentence still must be

vacated because the indictment failed to allege that his prior

conviction occurred before his last deportation, as opposed to

occurring prior to being found in the United States. This

argument also is foreclosed by Almendarez-Torres, as the Supreme

Court concluded that 18 U.S.C. § 1326(b)(2), which includes the

timing requirement of the aggravated felony, sets forth a

sentencing factor and not a separate criminal offense.

Almendarez-Torres, 523 U.S. at 235. Rodriguez has failed to

demonstrate error, plain or otherwise, in the indictment. See

United States v. Meshak, 225 F.3d 556, 575 (5th Cir. 2000)

(applying plain-error review to sentencing challenge raised for

the first time on appeal), cert. denied, 121 S. Ct. 834 (2001).

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.