United States v. Ruiz-Mota

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 13, 2003
• Docket: 02-20015
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20015 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MANUEL RUIZ-MOTA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-545-1 -------------------- February 12, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Manuel Ruiz-Mota appeals his bench-trial conviction

for illegal re-entry after deportation following an aggravated

felony. He first argues that the dismissal of the original

indictment for Speedy Trial Act violations should have been with

prejudice. The district court properly considered the statutory

factors of 18 U.S.C. § 3162(a)(1), and its supporting factual

findings are not clearly in error. United States v. Taylor, 487

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20015 -2-

U.S. 326, 337 (1988). Accordingly, the district court did not

abuse its discretion in dismissing the first indictment without

prejudice and in permitting reindictment. See United States v.

Blevins, 142 F.3d 223, 224 (5th Cir. 1998).

Ruiz also avers that 8 U.S.C. § 1326(b), which was used to

enhance his sentence based on his prior aggravated felony

conviction, is unconstitutional. Ruiz 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 Supreme

Court review in light of 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). Ruiz’ argument is foreclosed. Accordingly,

the judgment is AFFIRMED.