IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10198
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO VILLARREAL-FLORES,
also known as Francisco Flores-Villarreal,
also known as Frank Flores,
also known as Frank Villareal,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CR-ALL-P
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August 6, 2001
Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Francisco Villarreal-Flores appeals the 60-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.
*
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that this opinion should not be published and is not precedent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. 01-10198
-2-
Villarreal-Flores 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
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).
Villarreal-Flores’ argument is foreclosed. The judgment of the
district court is AFFIRMED.
The Government has moved for a summary affirmance or
dismissal of the appeal. The motion is GRANTED to the extent
that summary affirmance is requested.