IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10986 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO ABARCA-VENEGAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 6:00-CR-22-1-C - - - - - - - - - - December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Ricardo Abarca-Venegas (Abarca) appeals his conviction and

96-month sentence following his plea of guilty to illegal

re-entry into the United States after deportation in violation of

. Abarca 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

the indictment. He acknowledges that his argument is foreclosed

by Almendarez-Torres v. United States,

(1998), but

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10986 -2-

of Apprendi v. New Jersey,

(2000). Apprendi did

not overrule Almendarez-Torres. See Apprendi,

-62 & n.15. Abarca’s argument is foreclosed. See

Almendarez-Torres,

. Accordingly, Abarca’s

conviction and sentence are AFFIRMED.