United States v. Soto-Rivas

* 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that this opinion should not be published and is not precedent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. 00-50756
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL SOTO-RIVAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-96-1
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Manuel Soto-Rivas appeals his guilty-plea conviction for
illegally reentering the United States following a prior
deportation, in violation of 8 U.S.C. § 1326(a) and (b). He
argues that: (1) he was not required to show actual prejudice in
order to collaterally attack his previous administrative
deportation; and (2) his indictment was defective for failing to
allege his prior felony conviction as an element of the instant
offense.

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No. 00-50756
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Soto-Rivas concedes that his first argument is precluded by
our holding in United States v. Benitez-Villafuerte, 186 F.3d 651
(5th Cir. 1999), cert. denied, 528 U.S. 1097 (2000), but raises
it for possible Supreme Court review. He concedes that his
second argument is precluded by the Supreme Court’s holding in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
argues that the holding in Almendarez-Torres has been cast into
serious doubt by the Supreme Court’s recent decision in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362 & n.15 (2000).
Because the Apprendi court did not overrule Almendarez-Torres,
Soto-Rivas’s second argument is foreclosed. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), petition for cert.
filed, ___ U.S.L.W. ___ (U.S. Jan. 26, 2001)(No. 00-8299).
Accordingly, the district court’s judgment is AFFIRMED.

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