USA vs. Fernandez-Garcia, (5th Cir. 1998)

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-40966

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ULISES FERNANDEZ-GARCIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. M-97-CR-83-1

February 11, 1998

Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:* Jose Ulises Fernandez-Garcia appeals his sentence for unlawfully entering the United States after having been previously deported. Fernandez-Garcia argues that his sentence was improperly enhanced pursuant to Title 8 U.S.C. § 1326(b), based upon his prior commission of an aggravated felony, because the charging indictment did not mention the aggravated felony. His argument is foreclosed by United States v. Vasquez-Olvera, 999 F.2d 943 (5th Cir. 1993). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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