IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40470 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO CESAR ACOSTA-FUNEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-99-CR-451-1 -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Julio Cesar Acosta-Funez argues that a prior felony

conviction must be included in an indictment charging an illegal

reentry following deportation if the defendant is subject to an

enhanced sentence under

(b). He argues that

because the element of a prior felony conviction was not included

in his indictment, his sentence should be vacated and he should

be resentenced to a maximum term of two years.

Acosta acknowledges that in Almendarez-Torres v. United

States,

(1998), the Supreme Court held that a prior

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40470 -2-

felony conviction under

(b)(2) was merely a

sentencing factor and, thus, need not be included in the

indictment. He argues, however, that in its subsequent decision

in Apprendi v. New Jersey,

(2000), the

Supreme Court stated that it was arguable that Almendarez-Torres

was decided incorrectly and, thus, he is raising the argument to

preserve it for Supreme Court review.

Acosta concedes that he failed to raise this challenge in

the district court. Insofar as Acosta is challenging the

sufficiency of his indictment because it failed to allege an

essential element of the offense, the issue is reviewed de novo.

See United States v. Cabrera-Teran,

(5th Cir.

1999). However, Acosta’s challenge to the length of the sentence

imposed is reviewed for plain error. See United States v.

Meshack,

(5th Cir. 2000).

In light of the clear precedent of Almendarez-Torres, Acosta

has failed to show that his indictment was fatally defective or

that the district court committed error, plain or otherwise, in

imposing Acosta’s sentence. See United States v. Dabeit, F.3d

(5th Cir., Oct. 30, 2000, No. 00-10065)

.

The judgment of the district court is thus AFFIRMED.