United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003
Charles R. Fulbruge III
Clerk
No. 01-51141
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER CABRALES-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-00-CR-235-ALL
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Javier Cabrales-Lopez appeals the 77-month sentence imposed
following his guilty-plea conviction of one count 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.
Cabrales-Lopez’s argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998); see also United States v.
*
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that this opinion should not be published and is not precedent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. 01-51141
-2-
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). Accordingly, the
judgment of the district court is AFFIRMED.
The Government has moved for a summary affirmance in lieu of
filing an appellee’s brief. In its motion, the Government asks
that the judgment of the district court be affirmed and that an
appellee’s brief not be required. The motion is GRANTED.
AFFIRMED; MOTION GRANTED.