United States v. Munoz-Patlan

* 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that this opinion should not be published and is not precedent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. 00-41030
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN HUMBERTO MUNOZ-PATLAN, also known as
Fernando Gallardo Ortiz,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-166-1
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June 15, 2001
Before WIENER, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Humberto Munoz-Patlan (Munoz) appeals the 77-month
sentence he received following his guilty-plea conviction for
illegally reentering the United States after deportation, in
violation of 8 U.S.C. § 1326. He asserts that the aggravated-
felony convictions that resulted in his increased sentence under
8 U.S.C. § 1326(b)(2) were an element of the offense that should
have been charged in the indictment.

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No. 00-41030
-2-
Munoz acknowledges that his argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve the issue for
Supreme Court review in light of the decision in Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2362; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001). Munoz’s arguments is foreclosed,
and the judgment of the district court is AFFIRMED.

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