United States v. Villalobos

* 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this opinion should not be published and is not precedent except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
August 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40175
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL VILLALOBOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-963-ALL
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Rafael Villalobos appeals from his guilty-plea conviction of
reentry of a deported alien, in violation of 8 U.S.C.
§ 1326(b)(2) and 6 U.S.C. §§ 202, 557. He argues that the
“felony” and “aggravated felony” provisions of 8 U.S.C.
§ 1326(b)(1) and (2) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000).
As Villalobos concedes, his argument that the sentencing
provisions in 8 U.S.C. § 1326(b) are unconstitutional was
rejected in Almendarez-Torres, 523 U.S. 224, 235 (1998).

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No. 04-40175
-2-
Apprendi did not overrule Almendarez-Torres. See Apprendi, 530
U.S. at 489-90. This court must follow the precedent set in
Almendarez-Torres unless the Supreme Court overrules it. See
United States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001).
Villalobos’s argument is foreclosed.
The judgment of the district court is AFFIRMED.

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