IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50132 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ENRIQUE GOMEZ-SALAZAR, also known as Jessie (Jesus) Bonilla,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-99-CR-227-1 -------------------- October 19, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Enrique Gomez-Salazar appeals his sentence imposed for

illegal reentry into the United States following this court’s

remand for resentencing. Gomez-Salazar argues that his prior

conviction for transporting aliens does not constitute an

aggravated felony within the meaning of

(a)(43)(N)

and § 2L1.2 of the United States Sentencing Guidelines. He

argues that the rule of lenity requires that § 1101(a)(43)(N) be

interpreted as not including transporting aliens within 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50132 -2-

definition of aggravated felony. Gomez-Salazar acknowledges that

his argument is foreclosed by this court’s decision in United

States v. Monjaras-Castaneda,

(5th Cir. 1999), cert.

denied,

(2000), and states that he is raising the

issue to preserve it for possible Supreme Court review.

Monjaras-Castaneda forecloses this argument.

Both Gomez-Salazar and the government have filed motions for

leave to file supplemental briefs. The motions are granted.

Appellant in his supplemental brief argues that the Supreme Court

in Apprendi v. New Jersey,

(2000) effectively

overruled Almendarez-Torres v. United States,

(1998). He argues that if Apprendi undermines Almendarez-Torres,

his sentence, which was enhanced pursuant to

(b)(2), is invalid, and he should be resentenced under

(a). Gomez-Salazar acknowledges that this court

does not have the authority to overrule Almendarez-Torres and

states that he is raising the issue solely to preserve it for

possible Supreme Court review. Almendarez-Torres forecloses this

argument.

AFFIRMED; BOTH PARTIES’ MOTIONS FOR LEAVE TO FILE

SUPPLEMENTAL BRIEFS GRANTED.