United States v. Gomez-Infante

* 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that this opinion should not be published and is not precedent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. 00-40502
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNARDO GOMEZ-INFANTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-00-CR-3-ALL
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December 14, 2000
Before DAVIS, STEWART, and PARKER, Circuit Judges
PER CURIAM:*
Bernardo Gomez-Infante appeals his conviction and 77-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. Gomez 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 review in light of

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No. 00-40502
-2-
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. Gomez’s argument is foreclosed. See Almendarez-Torres,
523 U.S. at 235.
AFFIRMED.

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