United States v. Acosta-Funez ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40470
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR ACOSTA-FUNEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-451-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Julio Cesar Acosta-Funez argues that a prior felony
conviction must be included in an indictment charging an illegal
reentry following deportation if the defendant is subject to an
enhanced sentence under 8 U.S.C. § 1326(b). He argues that
because the element of a prior felony conviction was not included
in his indictment, his sentence should be vacated and he should
be resentenced to a maximum term of two years.
Acosta acknowledges that in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), the Supreme Court held that a prior
*
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that this opinion should not be published and is not precedent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. 00-40470
-2-
felony conviction under 8 U.S.C. § 1326(b)(2) was merely a
sentencing factor and, thus, need not be included in the
indictment. He argues, however, that in its subsequent decision
in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), the
Supreme Court stated that it was arguable that Almendarez-Torres
was decided incorrectly and, thus, he is raising the argument to
preserve it for Supreme Court review.
Acosta concedes that he failed to raise this challenge in
the district court. Insofar as Acosta is challenging the
sufficiency of his indictment because it failed to allege an
essential element of the offense, the issue is reviewed de novo.
See United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir.
1999). However, Acosta’s challenge to the length of the sentence
imposed is reviewed for plain error. See United States v.
Meshack, 225 F.3d 556, 575 (5th Cir. 2000).
In light of the clear precedent of Almendarez-Torres, Acosta
has failed to show that his indictment was fatally defective or
that the district court committed error, plain or otherwise, in
imposing Acosta’s sentence. See United States v. Dabeit, F.3d
(5th Cir., Oct. 30, 2000, No. 00-10065) 2000 WL 1634264 at *4.
The judgment of the district court is thus AFFIRMED.