               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-51071
                           Summary Calendar



                       UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                versus

                  JOSÉ LUIS DOMINGUEZ-DOMINGUEZ,

                                                   Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. A-99-CR-227-ALL
                        --------------------
                          September 6, 2002

Before HIGGINBOTHAM, JONES and DUHÉ, Circuit Judges.

PER CURIAM:1

     José Luis Dominguez-Dominguez, federal prisoner # 95254-080,

appeals from the denial of his post-judgment motion to dismiss his

indictment, which charged him with illegal reentry.         We construe

his motion as one seeking relief pursuant to Federal Rule of

Criminal   Procedure    12(b)(2).    Dominguez     raises   an   argument

parroting the holding of Apprendi v. New Jersey, 530 U.S. 466

(2000), that his indictment was defective insofar as it failed to

     1
        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that this opinion should not be published and is not precedent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.
charge that he had been deported following a conviction for an

aggravated     felony    and,   therefore,        that    the    court   lacked

jurisdiction to sentence him beyond the two-year maximum of 8

U.S.C. § 1326(a).

     Federal    Rule    of   Criminal       Procedure    12(b)   requires   that

defenses based on defects in the indictment be raised prior to

trial, save a defense that the indictment failed to charge an

offense, which “shall be noticed by the court at any time during

the pendency of the proceedings.”               FED. R. CRIM. P. 12(b)(2).

Dominguez argues that his challenge to the indictment can be raised

at any time because he is alleging that it failed to charge an

offense.

     Dominguez is incorrect when he argues that his prior felony

conviction is an element of his illegal reentry offense which was

required to be charged in the indictment. See Almendarez-Torres v.

United States, 532 U.S. 224, 236 (1998) (enhanced penalties of 8

U.S.C. § 1326(b) are sentencing factors and not elements of the

offense).      Nevertheless,    even    if     Apprendi    called   Almendarez-

Torres’s holding into question, in United States v. Cotton, 122 S.

Ct. 1781 (2002), the Supreme Court rejected an Apprendi challenge

to an indictment based on its failure to charge drug quantity,

holding that a defective indictment does not deprive a court of

jurisdiction.     Cotton, 122 S. Ct. at 1785.              Consequently, Rule

12(b)(2)’s provision that defenses and objections based on the

indictment’s failure to show jurisdiction or to charge an offense

                                        2
“shall be noticed by the court at any time during the pendency of

the proceedings” is meaningless in an Apprendi-claim situation.

Dominguez’s claim therefore falls into the residual category of

defects which must be raised prior to trial.   See FED. R. CRIM. P.

12(b)(2).   His claim was raised post-judgment.     Rule 12(b)(2)

therefore affords him no relief.

     AFFIRMED.




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