United States v. Benitez-Villafuerte

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10839 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL BENITEZ-VILLAFUERTE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-87-T -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Gabriel Benitez-Villafurete appeals the 70-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of 8 U.S.C.

§ 1326. He contends that the felony conviction that resulted in

his increased sentence under 8 U.S.C. § 1326(b)(2) was an element

of the offense that should have been charged in the indictment.

Benitez-Villafurete acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10839 -2-

the issue for Supreme Court review in light of the decision in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at ___, 120 S. Ct. at 2362; United States v. Dabeit, 231

F.3d 979, 984 (5th Cir. 2000), petition for cert. filed, (U.S.

Jan. 26, 2001)(No. 00-8299). Benitez-Villafurete’s argument is

foreclosed. The judgment of the district court is AFFIRMED.