IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40305 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ ANTONIO SALDIVAR-GONZALEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-417-1 - - - - - - - - - - December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

José Antonio Saldivar-Gonzalez (Saldivar) appeals his

conviction and 77-month sentence following his plea of guilty to

illegal re-entry into the United States after deportation in

violation of

. Saldivar 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40305 -2-

review in light of Apprendi v. New Jersey,

(2000). Apprendi did not overrule Almendarez-Torres. See

Apprendi,

-62 & n.15. Saldivar’s argument is

foreclosed. See Almendarez-Torres,

.

Accordingly, Saldivar’s conviction and sentence are AFFIRMED.