United States v. Dominguez-Dominguez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51071
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSÉ LUIS DOMINGUEZ-DOMINGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CR-227-ALL
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September 6, 2002
Before HIGGINBOTHAM, JONES and DUHÉ, Circuit Judges.
PER CURIAM:1
José Luis Dominguez-Dominguez, federal prisoner # 95254-080,
appeals from the denial of his post-judgment motion to dismiss his
indictment, which charged him with illegal reentry. We construe
his motion as one seeking relief pursuant to Federal Rule of
Criminal Procedure 12(b)(2). Dominguez raises an argument
parroting the holding of Apprendi v. New Jersey, 530 U.S. 466
(2000), that his indictment was defective insofar as it failed to
1
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that this opinion should not be published and is not precedent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.
charge that he had been deported following a conviction for an
aggravated felony and, therefore, that the court lacked
jurisdiction to sentence him beyond the two-year maximum of 8
U.S.C. § 1326(a).
Federal Rule of Criminal Procedure 12(b) requires that
defenses based on defects in the indictment be raised prior to
trial, save a defense that the indictment failed to charge an
offense, which “shall be noticed by the court at any time during
the pendency of the proceedings.” FED. R. CRIM. P. 12(b)(2).
Dominguez argues that his challenge to the indictment can be raised
at any time because he is alleging that it failed to charge an
offense.
Dominguez is incorrect when he argues that his prior felony
conviction is an element of his illegal reentry offense which was
required to be charged in the indictment. See Almendarez-Torres v.
United States, 532 U.S. 224, 236 (1998) (enhanced penalties of 8
U.S.C. § 1326(b) are sentencing factors and not elements of the
offense). Nevertheless, even if Apprendi called Almendarez-
Torres’s holding into question, in United States v. Cotton, 122 S.
Ct. 1781 (2002), the Supreme Court rejected an Apprendi challenge
to an indictment based on its failure to charge drug quantity,
holding that a defective indictment does not deprive a court of
jurisdiction. Cotton, 122 S. Ct. at 1785. Consequently, Rule
12(b)(2)’s provision that defenses and objections based on the
indictment’s failure to show jurisdiction or to charge an offense
2
“shall be noticed by the court at any time during the pendency of
the proceedings” is meaningless in an Apprendi-claim situation.
Dominguez’s claim therefore falls into the residual category of
defects which must be raised prior to trial. See FED. R. CRIM. P.
12(b)(2). His claim was raised post-judgment. Rule 12(b)(2)
therefore affords him no relief.
AFFIRMED.
3