United States v. Espinosa-Hernandez

* 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that this opinion should not be published and is not precedent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
December 10, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40808
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS DONALDO ESPINOSA-HERNANDEZ, also known as Ronnie
Espinosa,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-147-1
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Donaldo Espinosa-Hernandez appeals his guilty plea
conviction of being found in the United States without permission
after having been removed. He argues for the first time on
appeal 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 the indictment and that
8 U.S.C. § 1326(b)'s felony and aggravated felony provisions are

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No. 03-40808
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unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). As he acknowledges, his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.

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