United States v. Villafranca-Cabrera

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40739
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE VILLAFRANCA-CABRERA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-78-1
--------------------
April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Jose Villafranca-Cabrera appeals his 41-month sentence
following his plea of guilty to a charge of illegal re-entry to
the United States after deportation, a violation of 8 U.S.C.
§ 1326. Villafranca-Cabrera asserts 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
alleged in the indictment. He acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998), but he seeks to preserve the issue for Supreme

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No. 00-40739
-2-
Court review in light of Apprendi v. New Jersey, 120 S. Ct. 2348,
2362-63 (2000). Villafranca-Cabrera’s argument is foreclosed.
See Almendarez-Torres, 523 U.S. at 235.
AFFIRMED.

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