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

                                                  FILED
                                                                         December 10, 2009
                                      No. 09-40151
                                    Summary Calendar                   Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RICARDO GRANADOS,

                                                   Defendant-Appellant


                      Appeal from the United States District Court
                           for the Southern District of Texas
                              USDC No. 1:08-CR-172-ALL


Before KING, STEWART, and HAYNES * , Circuit Judges.
PER CURIAM:**
       Ricardo Granados appeals the sentence imposed following his jury trial
conviction for being illegally present in the United States after having been
deported. Granados argues for the first time on appeal that the district court
erred in applying the sentence enhancement provision of 8 U.S.C. § 1326(b)(1)
after finding him guilty of violating only § 1326(a).                 He argues that the
Government was required to prove to the jury beyond a reasonable doubt that

       *
           Concurring in the judgment only.
       **
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40151

he violated § 1326(b)(1) because that provision was alleged specifically in the
indictment. He notes that the jury could not have found him guilty of the offense
alleged in the indictment because the district court did not explain in its
instructions to the jury that a prior felony conviction was an element of the
charged offense. We review for plain error. See Puckett v. United States, 129 S.
Ct. 1423, 1427-29 (2009).
      In Almendarez-Torres v. United States, 523 U.S. 224, 235, 239 (1998), the
Supreme Court concluded that the felony and aggravated felony provisions of
§ 1326(b) did not establish separate criminal offenses but instead set forth
sentencing factors for a § 1326(a) offense, i.e., the Court concluded that the fact
of a prior conviction did not constitute an element of a crime under § 1326(a).
The Court subsequently held in Apprendi v. New Jersey, 530 U.S. 466, 489-90
(2000), that facts that are used to enhance the penalty for a crime beyond the
statutory maximum must be submitted to the jury and proved beyond a
reasonable doubt. However, relying on Almendarez-Torres, the Court expressly
established an exception for enhancement factors based upon the fact of a prior
conviction. Id.; see also United States v. Pineda-Arrellano, 492 F.3d 624, 625
(5th Cir. 2007) (holding in light of Apprendi that this court was bound by
Almendarez-Torres to conclude that a prior felony conviction is a sentencing
factor rather than an element of a § 1326(a) offense that must be presented to
the jury).
      Because the felony provisions of § 1326(b) represent sentencing factors
rather than separate offenses or elements of the offense under § 1326(a), the
Government is not required at trial to present evidence of a prior conviction to
establish a violation of § 1326(a) or to secure an enhancement under § 1326(b).
A defendant will be subject to a sentence enhancement under § 1326(b) even if
the indictment neither alleges the existence of a prior felony offense nor
references the felony provisions of § 1326(b). See Apprendi, 530 U.S. at 489-90;
Almendarez-Torres, 523 U.S. at 235, 239. Although the Government alleged the

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existence of a prior felony conviction, the commission of a prior felony is not an
element of the substantive § 1326(a) offense with which Granados was charged.
The Government’s inclusion of a factor that was beyond the elements of the
crime alleged in the indictment was mere surplusage and did not need to be
proved or addressed in the jury instructions. See United States v. Miller, 471
U.S. 130, 144 (1985) (holding that part of the indictment unnecessary to and
independent of the allegations of the offense proved may normally be treated as
a useless averment that may be ignored).
      Accordingly, the judgment of the district court should be AFFIRMED.




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