IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40307 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANTONIA LAREINAGA-DE LA GUERRA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-44-1 -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Jose Antonia Lareinaga-de la Guerra (“Lareinaga”) appeals

his conviction and 53-month sentence following his plea of guilty

to illegal re-entry into the United States after deportation, a

violation of

. Lareinaga 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40307 -2-

review in 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). Lareinaga’s argument is foreclosed. See

Almendarez-Torres,

.

AFFIRMED.