IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40492 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME ASTUL VELASQUEZ-RIVERA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-34-1 _________________________________________________________________

December 4, 2000

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

Jaime Astul Velasquez-Rivera appeals his conviction and

41-month sentence following his plea of guilty to illegal re-entry

into the United States after deportation, a violation of

. Velasquez argues that the felony conviction that resulted

in his increased sentence under

(b)(2) was an

element of the offense that should have been charged in his

indictment. He acknowledges that his argument is foreclosed by

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Almendarez-Torres v. United States,

(1998), but he

seeks to preserve the issue for Supreme Court review in the light

of Apprendi v. New Jersey,

(2000). Apprendi did not

overrule Almendarez-Torres. See Apprendi,

-62 &

n.15; see also United States v. Dabeit, ___ F.3d ___,

(5th Cir. Oct. 30, 2000, No. 00-10065). Velasquez’s

argument is foreclosed. See Almendarez-Torres,

.

A F F I R M E D.

2