United States v. Morales

* 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that this opinion should not be published and is not precedent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. 00-41334
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO HERNANDEZ MORALES, also known
as Francisco Hernandez, also known as
Francisco Morales,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-306-1
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August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Francisco Hernandez Morales appeals his conviction and
sentence for illegal reentry by a previously deported alien, in
violation of 8 U.S.C. § 1326. He contends that the felony
conviction that resulted in his increased sentence under 8 U.S.C.
§ 1326(b)(2) is an element of the offense that should have been
charged in the indictment. Morales acknowledges that this
argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

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No. 00-41334
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seeks to raise the issue in light of the Supreme Court’s decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000), which he asserts
calls the Almendarez-Torres decision into question. 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, 121 S. Ct. 1214 (2001). Accordingly, Morales’ only
argument on appeal is foreclosed. His conviction and sentence
are AFFIRMED.

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