          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                                August 20, 2008
                               No. 07-20580
                            Conference Calendar            Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

SERGIO VASQUEZ CARBAJAL, also known as Sergio Carvajal Vazquez, also
known as Sergio Vasquez-Carbajal, also known as Sergio Carvajal-Vasquez, also
known as Sergio Vazquez

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 4:07-CR-39-ALL


Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Sergio Vasquez Carbajal was convicted of illegal reentry into the United
States after having been deported and was sentenced to serve 46 months in
prison. In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), he challenges
the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the


      *
      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should not be published and is not precedent except under the limited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. 07-20580

offense that must be found by a jury.         This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
      The judgment of the district court is AFFIRMED.




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