IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20145 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARTURO OROZCO-MOTA, also known as Sergio Orozco-Mota, also known as Arturo Lopez-Gonzalez, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-236-1 -------------------- December 14, 2000 Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:* Arturo Orozco-Mota appeals his guilty-plea conviction for re-entering the United States illegally after deportation in violation of 8 U.S.C. § 1326. He also appeals from his sentence which was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). He argues that in view of the Supreme Court’s recent decision in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), his sentence should be vacated because it exceeds the two-year statutory maximum sentence for a violation of 8 U.S.C. § 1326(a).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20145 -2- Orozco-Mota also argues that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was an element of the offense that should have been charged in his indictment. Orozco-Mota acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), and states that he is raising the issue to preserve it for possible Supreme Court review. Although the Supreme Court noted that Almendarez-Torres may have been incorrectly decided, the Supreme Court did not expressly overrule it in Apprendi.

Apprendi, 120 S. Ct. at 2362 & n.15. Orozco-Mota’s argument is foreclosed by Almendarez-Torres.

AFFIRMED.