United States v. Lareinaga-De La Guer ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40307
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIA LAREINAGA-DE LA GUERRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-44-1
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Antonia Lareinaga-de la Guerra (“Lareinaga”) appeals
his conviction and 53-month sentence following his plea of guilty
to illegal re-entry into the United States after deportation, a
violation of 8 U.S.C. § 1326. Lareinaga argues 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 his indictment. He 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
*
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that this opinion should not be published and is not precedent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. 00-40307
-2-
review in light of Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 120 S. Ct. at 2361-62 & n.15; see also United States v.
Dabeit, ___ F.3d ___, 2000 WL 1634264 at *4 (5th Cir. Oct. 30,
2000, No. 00-10065). Lareinaga’s argument is foreclosed. See
Almendarez-Torres, 523 U.S. at 235.
AFFIRMED.