United States v. Amaya-Rosales ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50926
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MARVIN AMAYA-ROSALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CR-104-ALL
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April 8, 1998
Before JOLLY, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:*
Jose Marvin Amaya-Rosales appeals his guilty-plea sentencing
for reentry after deportation in violation of 8 U.S.C. § 1326.
He argues that the indictment charged him with simple reentry, a
violation of § 1326(a), but he was sentenced as if he had pleaded
guilty to reentry following an aggravated felony conviction
pursuant to § 1326(b)(2). His argument is foreclosed by the
Supreme Court’s decision in Almendarez-Torres v. United States,
___ U.S. ___, 1998 WL 126904, at *3, *8 (U.S. Mar. 24, 1998).
AFFIRMED.
*
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that this opinion should not be published and is not precedent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.