United States v. Duenas

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41369
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ANTONIO DUENAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1348-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Juan Antonio Duenas appeals from his conviction of
possession with intent to distribute more than 50 grams of
methamphetamine. He contends that the district court erred by
failing to hold a colloquy pursuant to 21 U.S.C. § 851(b) before
using a prior conviction to enhance his sentence under 21 U.S.C.
§ 841(b)(1)(A); that the use of the prior conviction to enhance
his sentence was unconstitutional because the prior conviction
was not alleged in his indictment or proved to a jury beyond a
reasonable doubt; and that 21 U.S.C. § 841 violates Apprendi v.

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No. 03-41369
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New Jersey, 530 U.S. 466 (2000). We review all of Duenas’s
contentions under the plain-error standard. See United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).
Duenas has failed to demonstrate reversible error regarding
the district court’s failure to hold a colloquy pursuant to
21 U.S.C. § 851(b), as he did not challenge the information
indicating the Government’s desire to use his prior conviction to
enhance his sentence. See United States v. Thomas, 348 F.3d 78,
87 (5th Cir. 2003), cert. denied, 124 S. Ct. 1481 (2004). United
States v. Reyna, 358 F.3d 344 (5th Cir.) (en banc), cert. denied,
124 S. Ct. 2390 (2004), is inapposite to Duenas’s case.
Duenas correctly concedes that his remaining contentions are
foreclosed, but he seeks to preserve them for further review.
First, the fact of a prior conviction need not be alleged in an
indictment or proved to a jury beyond a reasonable doubt. See
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Second, Apprendi did not render 21 U.S.C. § 841 facially
unconstitutional. United States v. Slaughter, 238 F.3d 580, 582
(5th Cir. 2000).
AFFIRMED.

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