United States v. Duenas-Ochoa

* 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that this opinion should not be published and is not precedent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. 00-40785
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMUEL DUENAS-OCHOA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-63-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Samuel Duenas-Ochoa (Duenas) appeals his conviction and 57-
month sentence following his plea of guilty to attempted illegal
reentry after deportation in violation of 8 U.S.C. § 1326.
Duenas argues 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. He
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review in light of Apprendi v. New

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No. 00-40785
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Jersey, 120 S. Ct. 2348 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2361-62 & n.15;
United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
petition for cert. filed (U.S. Jan. 26, 2001)(No. 00-8299).
Duenas’s argument is foreclosed. See Almendarez-Torres, 523 U.S.
at 235. Accordingly, Duenas’s conviction and sentence are
AFFIRMED.

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