United States v. Pena ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41460
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER PENA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-864-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Javier Pena appeals his 30-month prison 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.
Pena acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve his contention for
*
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that this opinion should not be published and is not precedent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. 01-41460
-2-
Supreme Court review in light of the decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). Apprendi, however, did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 490; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied,
531 U.S. 1202 (2001). Pena’s argument is foreclosed. The
judgment of the district court is AFFIRMED.