United States v. Penuelas-Montoya

* 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that this opinion should not be published and is not precedent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. 00-50748
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS PENUELAS-MONTOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-00-CR-64-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus Penuelas-Montoya appeals from his conditional-guilty-
plea conviction of illegal reentry after deportation, pursuant to
8 U.S.C. § 1326. He contends that the district court erred in
denying his motion to dismiss the indictment because his previous
deportation proceedings violated the Due Process Clause. He also
contends that his sentence should be vacated because the
Government did not allege his prior felony conviction in the
indictment.

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No. 00-50748
-2-
Penuelas concedes that the issues raised in this appeal are
foreclosed by this court’s decision in United States v. Benitez-
Villafuerte, 186 F.3d 651, 657-58 (5th Cir. 1999), cert. denied,
528 U.S. 1097 (2000), and the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and
that he raises the issues solely to preserve them for review by
the Supreme Court. This court affirms the judgment of the
district court.
AFFIRMED.

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