United States v. Fuentes

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40507
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARMEN NOEL FUENTES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-CR-789-1
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Carmen Noel Fuentes appeals his sentence for his guilty-plea
conviction for illegal reentry into the country after having been
deported following an aggravated felony conviction. See 8 U.S.C.
§ 1326(b)(2). For the first time on appeal, he argues that
§ 1326(b)(2) is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000).
As conceded by Fuentes, his challenge to the
constitutionality of 8 U.S.C. § 1326(b)(2) is foreclosed by

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No. 03-40507
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Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998),
which was not overruled by Apprendi. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Moreover, the
indictment specifically charged that Fuentes had previously been
convicted of an aggravated felony.
AFFIRMED.

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