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United States v. Moreno, 95-10869 (1996)

Court: Court of Appeals for the Fifth Circuit Number: 95-10869 Visitors: 24
Filed: Jul. 09, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10869 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIO ESTEBAN MORENO, Sr., Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:95-CR-56-Y - - - - - - - - - - June 27, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Mario Moreno appeals his conviction for illegal reentry into the United St
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 95-10869
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,


versus

MARIO ESTEBAN MORENO, Sr.,

                                          Defendant-Appellant.


                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 4:95-CR-56-Y
                        - - - - - - - - - -
                           June 27, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Mario Moreno appeals his conviction for illegal reentry into

the United States after previous deportation.   Acknowledging that

controlling authority is contrary to his position, Moreno argues

that his sentence was imposed in violation of the law because the

indictment did not contain an allegation that he committed a

prior felony.    See United States v. Vasquez-Olvera, 
999 F.2d 943
,

945-46 (5th Cir. 1993)(the charging instrument need not contain

     *
        Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                           No. 95-10869
                               - 2 -

an allegation that the defendant committed a prior felony if he

is to be convicted under 18 U.S.C. ยง 1326(b)(2)), cert. denied,

114 S. Ct. 889
(1994).

     This panel will not overrule the decision of another panel

of this circuit.   United States v. Taylor, 
933 F.2d 307
, 313 (5th

Cir.), cert. denied, 
502 U.S. 883
(1991).     The district court did

not err by following 
Vasquez-Olvera, 999 F.2d at 945-46
.

     Moreno failed to address the procedural problem that he

waived all nonjurisdictional errors that preceded the plea.      See

United States v. Owens, 
996 F.2d 59
, 60 (5th Cir. 1993).    To

raise the Vasquez-Olvera issue, Moreno must show that the issue

is jurisdictional, i.e. that the indictment was so flawed that

the district court had no jurisdiction to adjudicate the case or

that the indictment did not charge a crime.     See United States v.

Barksdale-Contreras, 
972 F.2d 111
, 113 (5th Cir. 1992), cert.

denied, 
506 U.S. 1084
and cert. denied, 
507 U.S. 997
(1993).     We

do not reach this waiver question because, even if we presume

that this issue is not waived, Vasquez-Olvera controls.

     AFFIRMED.

Source:  CourtListener

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