United States v. Oyuela-Baquedano

* 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that this opinion should not be published and is not precedent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. 02-20503
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS OYUELA-BAQUEDANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-896-ALL
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December 12, 2002
Before JOLLY, JONES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luis Oyuela-Baquedano (“Oyuela”) appeals the sentencing
following his guilty-plea conviction for illegal reentry into
the United States following deportation. Oyuela contends that
8 U.S.C. § 1326(b)(2) is unconstitutional because it treats a
prior conviction for an aggravated felony as a mere sentencing
factor and not an element of the offense. Oyuela concedes that
his argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he nevertheless seeks to preserve the

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No. 02-20503
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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, 531 U.S. 1202 (2001). Oyuela’s
argument is foreclosed. Therefore, Oyuela’s sentence is
AFFIRMED.

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