IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50199 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE SANTOS LOZANO-GUTIERREZ, ALSO KNOWN AS Santos Lozano, also known as Santos Lozano Gutierrez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-453-1-HG -------------------- December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Jose Santos Lozano-Gutierrez pleaded guilty to illegal

reentry into the United States after having been previously

deported. His sentence was enhanced because his prior

deportation occurred following a felony conviction. See

(b). For the first time on appeal, Lozano-Gutierrez argues

that, under Apprendi v. New Jersey,

(2000),

the indictment in his case was deficient because it failed to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50199 -2-

allege that his prior deportation followed a conviction for an

aggravated felony under § 1326(b).

Lozano-Gutierrez’s argument is without merit given the

Supreme Court’s decision in United States v. Almendarez-Torres,

(1998). The Court in Apprendi did not overrule its

holding in Almendarez-Torres. See Apprendi,

-

63. Lozano-Gutierrez’s guilty-plea conviction is therefore

AFFIRMED.