IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50610
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL RODRIGUEZ-AVILES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CR-61-1
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December 10, 1997
Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Saul Rodriguez-Aviles appeals from his sentence for illegal
reentry after deportation in violation of 8 U.S.C. § 1326. He
argues that he was charged with and pleaded guilty to simple
reentry under § 1326(a) and that his sentence under § 1326(b)(2)
is a violation of due process because the indictment did not
allege that he had a prior aggravated felony conviction. His
argument is foreclosed by this court’s opinion in United States
v. Vasquez-Olvera, 999 F.2d 943, 946-47 (5th Cir. 1993).
*
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that this opinion should not be published and is not precedent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. 97-50610
-2-
Rodriguez-Aviles’ motion for a stay of his appeal pending
the Supreme Court’s decision in United States v. Almendarez-
Torres, 113 F.3d 515 (5th Cir. 1996), cert. granted, 117 S. Ct.
1333 (1997), is DENIED.
AFFIRMED.