United States v. Molina-Garcia

1 Although appellant’s name is spelled with an “a” (Motina)
throughout the record, he stated at the guilty plea hearing that
the correct spelling is Motino.
** 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that this opinion should not be published and is not precedent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. 00-40559
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER MOTINA1-GARCIA, also known as
Javier Molina-Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-32-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:**
Javier Motino-Garcia appeals his sentence following his
guilty-plea conviction for illegal reentry following deportation
in violation of 8 U.S.C. § 1326(a) and (b). Motino argues that a
prior felony conviction is an element of the offense rather than
a sentencing factor and that it must be alleged in the
indictment. Motino acknowledges that his argument is foreclosed

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No. 00-40559
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by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve the issue for possible Supreme Court review
in the light of Apprendi v. New Jersey, 120 S.Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi, 120
S.Ct. at 2361-62 & n.15; see also United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), petition for cert. filed, (U.S.
Jan. 26, 2001)(No. 00-8299). This argument is therefore
foreclosed.
Motino also argues that if Almendarez-Torres remains good
law after Apprendi, his sentence still must be vacated because
the indictment failed to allege that his prior conviction
occurred before his last deportation, as opposed to occurring
prior to being “found” by the INS. Motino cites no case law in
support of this argument, and he admits that he failed to raise
the issue in the district court. Motino cannot show plain error
as a result of the language in the indictment. See United States
v. Meshack, 225 F.3d 556, 575 (5th Cir. 2000), cert. denied, 121
S. Ct. 834 (2001); United States v. Rios-Quintero, 204 F.3d 214,
215 (5th Cir.), cert. denied, 121 S. Ct. 301 (2000).
AFFIRMED.

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