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. 02-41701
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VILLALOBOS-REYES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-724-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Luis Villalobos-Reyes (“Villalobos-Reyes”) appeals his
guilty plea conviction and sentence for illegal reentry into the
United States following deportation. Villalobos-Reyes argues
that the sentencing provisions in 8 U.S.C. § 1326(b)(1) & (b)(2)
are unconstitutional based on Apprendi v. New Jersey, 530 U.S.
466 (2000). He also argues that a FED. R. CRIM. P. 11 guilty plea
colloquy should not be statutorily or constitutionally delegated
to a non-Article III magistrate judge. Villalobos-Reyes concedes
*
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that this opinion should not be published and is not precedent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. 02-41701
-2-
that his arguments are foreclosed, but he nevertheless seeks to
preserve them for Supreme Court review.
Villalobos-Reyes’ contention that the enhancement provisions
in 8 U.S.C. § 1326(b)(1) & (b)(2) are unconstitutional lacks
merit because Apprendi did not overrule Almendarez-Torres v.
United States, 523 U.S. 24 (1998). See Apprendi, 530 U.S. at
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
Villalobos-Reyes’ contention that a magistrate judge should
not be statutorily or constitutionally delegated to conduct a
FED. R. CRIM. P. 11 plea colloquy is foreclosed by our decision in
United States v. Dees, 125 F.3d 261, 264-68 (5th Cir. 1997).
For the foregoing reasons, Villalobos-Reyes’ sentence is
AFFIRMED.