United States v. Sandoval

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20300 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDENIXON BALMORE SANDOVAL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-664-1 - - - - - - - - - -

April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Edenixon Balmore Sandoval appeals his conviction and

sentence for illegal reentry by a previously deported alien, in

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) is an element of the offense that must have been

charged in the indictment. Sandoval acknowledges that this

argument is foreclosed by the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20300 -2-

seeks to preserve the issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

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

S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Accordingly,

Sandoval’s only argument on appeal is foreclosed. His conviction

and sentence are AFFIRMED.