United States v. Uribe-Hernandez

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41404
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PASQUEL URIBE-HERNANDEZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-312-1
--------------------
October 26, 2001
Before WIENER, BENAVIDES, and DENNIS Circuit Judges.
PER CURIAM:*
Pasquel Uribe-Hernandez (“Uribe”) appeals his conviction and
46-month sentence following his plea of guilty to illegal reentry
into the United States after deportation, a violation of 8 U.S.C.
§ 1326. Uribe 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.
Uribe 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 review in light of

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No. 00-41404
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decision in Apprendi because the Supreme Court indicated in
Apprendi that Almendarez- Torres may have been wrongly decided.
Because the Supreme Court has not overruled Almendarez-Torres,
this court is compelled to follow it. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121
S. Ct. 1214 (2001). Uribe’s argument is foreclosed. See
Almendarez-Torres, 523 U.S. at 235.
Uribe’s conviction and sentence are AFFIRMED.

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