United States v. Lazo-Raya

* 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that this opinion should not be published and is not precedent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
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41301
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FLORENCIO LAZO-RAYA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-548-1
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Florencio Lazo-Raya appeals his conviction of being present
in the United States following deportation. He argues, for the
first time on appeal, that 8 U.S.C. § 1326(b) is unconstitutional
because it treats a prior conviction for a felony or aggravated
felony as a sentencing factor and not as an element of the
offense. He also contends that his sentence is illegal because
his indictment did not allege that he committed an aggravated
felony before he was deported. Lazo-Raya’s arguments are

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No. 03-41301
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foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235, 239-47 (1998). Apprendi v. New Jersey, 530 U.S. 466, 489-90
(2000), did not overrule that decision. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Thus, the district
court did not err in sentencing Lazo-Raya under 8 U.S.C.
§ 1326(b).
AFFIRMED.

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