IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10839
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL BENITEZ-VILLAFUERTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-87-T
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April 12, 2001
Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.
PER CURIAM:*
Gabriel Benitez-Villafurete appeals the 70-month sentence
imposed following his plea of guilty to a charge of being found
in the United States after deportation, a violation of 8 U.S.C.
§ 1326. He contends 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 charged in the indictment.
Benitez-Villafurete acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
*
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that this opinion should not be published and is not precedent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. 00-10839
-2-
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at ___, 120 S. Ct. at 2362; United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000), petition for cert. filed, (U.S.
Jan. 26, 2001)(No. 00-8299). Benitez-Villafurete’s argument is
foreclosed. The judgment of the district court is AFFIRMED.