IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50314 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1582-1-DB -------------------- October 19, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Manuel Guerrero appeals his guilty-plea conviction for

illegal reentry into the United States, in violation of

. Guerrero challenges the district court’s refusal to

grant his motion for a downward departure under U.S.S.G. § 2L1.2,

comment. (n.5). He contends “that the text, history, and

policies of the Sentencing Guidelines indicate that note 5

authorizes departures for aggravated felons who received

suspended sentences, without actual incarceration, exceeding one

year.” Guerrero concedes that the issue raised in this appeal is

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50314 -2-

foreclosed by our decision in United States v. Yanez-Huerta,

(5th Cir. 2000), petition for cert. filed, (U.S. Sept.

5, 2000)(No. 00-6044), but raises his contention solely to

preserve it for review by the Supreme Court.

Both Guerrero 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). Guerrero 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.