United States v. Casarez-Herrera

* 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that this opinion should not be published and is not precedent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. 00-40353
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON CASAREZ-HERRERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-486-1
--------------------
December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
In this appeal following his guilty-plea conviction for
illegally reentering the United States after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b)(2), Ramon
Casarez-Herrera argues that a prior felony conviction is an
element of the offense of illegal reentry, and that because this
element was not included in his indictment, his sentence should
be vacated and he should be resentenced under a maximum term of
two years. Casarez acknowledges that in Almendarez-Torres v.
United States, 523 U.S. 224, 226-27 (1998), the Supreme Court

-- 1 of 2 --

No. 00-40353
-2-
held that a prior 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 notes that in its subsequent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), however,
the Supreme Court stated that it was arguable that Almendarez-
Torres was decided incorrectly.
In light of the clear precedent of Almendarez-Torres,
Casarez has failed to show error, plain or otherwise, in his
indictment or 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
AFFIRMED.

-- 2 of 2 --