United States v. Cabrales-Lopez

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. -------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-00-CR-235-ALL -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.