IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50620
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO YANEZ-PENALOZA,
a/k/a Arturo Yanez-Penazola,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-97-CR-37-1
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February 12, 1998
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Arturo Yanez-Penaloza appeals from his sentence for illegal
reentry after deportation in violation of 8 U.S.C. § 1326. He
contends that his sentence under § 1326(b)(2) constitutes a
violation of due process because the indictment did not allege
that he had a prior aggravated-felony conviction. His contention
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that this opinion should not be published and is not precedent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. 97-50620
-2-
Yanez-Penaloza’s 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. See Wicker v. McCotter, 798 F.2d 155, 157-58
(5th Cir. 1986).
JUDGMENT AFFIRMED; MOTION DENIED.