United States v. Garcia-Luna

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-40720 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GUADALUPE GARCIA-LUNA, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-97-CR-118 - - - - - - - - - - April 10, 1998 Before JOLLY, JONES, and DUHÉ, Circuit Judges. PER CURIAM:* Guadalupe Garcia-Luna appeals his sentence following a guilty-plea conviction for illegal reentry into the United States after his deportation in violation of 8 U.S.C. § 1326. Garcia- Luna argues that he was charged with and pleaded guilty to simple illegal reentry under § 1326(a) and that he could not be sentenced under § 1326(b)(2) because the indictment failed to allege that he had a prior aggravated felony conviction. His argument is foreclosed by the U.S. Supreme Court’s decision in Almendarez-Torres v. United States, ___ U.S. ___, 1998 WL 126904, at *3, *8 (U.S. Mar. 24, 1998). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-40710 -2- AFFIRMED.