     Case: 11-51121      Document: 00512484133         Page: 1    Date Filed: 12/30/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 11-51121                           December 30, 2013
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JUAN CARLOS FUENTES-ULLOA,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1385-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Juan Carlos Fuentes-Ulloa challenges his guilty-plea conviction for
illegal reentry under 8 U.S.C. § 1326. For the first time on appeal, he contends
his enhanced sentence under § 1326(b)(2) (removal following aggravated-felony
conviction) must be vacated because his indictment failed to allege, and the
Government failed to prove, his prior aggravated-felony conviction. Fuentes
maintains, following Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 11-51121

v. United States, 133 S. Ct. 2151 (2013), his prior conviction, which increased
his maximum sentence from two to either 10 or 20 years, is a fact essential to
the penalty and is therefore an element of the offense.
      Because Fuentes raises the issue for the first time on appeal, review is
only for plain error. For reversible plain error, Fuentes must show a clear or
obvious forfeited error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Even if he shows such reversible plain
error, we have the discretion to correct the error, but should do so only if it
seriously affects the fairness, integrity, or public reputation of the proceedings.
See id.   Fuentes fails, however, to show any error.
      In Apprendi, the Court held: “Other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt”.
530 U.S. at 490. Because it created an exception for prior convictions, Apprendi
did not overrule Almendarez-Torres v. United States, which held § 1326(b)(2)
was a sentencing factor, rather than an element of the offense, and, thus, need
not be alleged in the indictment. Id. at 489-90; Almendarez-Torres, 523 U.S.
224, 226-27 (1998).     “This court has patiently entertained the identical
argument in countless cases. . . . [however, b]ecause the Supreme Court treats
Almendarez-Torres as binding precedent, [Fuentes’] argument is fully
foreclosed from further debate”. United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007).
      In Alleyne, the Supreme Court extended Apprendi’s reasoning to
statutory minimum sentences, holding: “Facts that increase the mandatory
minimum sentence are therefore elements and must be submitted to the jury
and found beyond a reasonable doubt”. Alleyne, 133 S. Ct. at 2158. The




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                                 No. 11-51121

Supreme Court specifically noted, however, that its decision did not revisit the
Almendarez-Torres exception. Id. at 2160 n.1.
      AFFIRMED.




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