United States v. Favela-Morales

* 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that this opinion should not be published and is not precedent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. 00-20750
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO FAVELA-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-73
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Santiago Favela-Morales appeals the 77-month sentence
imposed following his plea of guilty to a charge of illegal
reentry into 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.
Favela-Morales acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United

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No. 00-20750
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States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Favela-
Morales’ argument is foreclosed. The judgment of the district
court is AFFIRMED.

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