IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40502 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERNARDO GOMEZ-INFANTE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-3-ALL -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges

PER CURIAM:*

Bernardo Gomez-Infante appeals his conviction and 77-month

sentence following his plea of guilty to illegal re-entry into

the United States after deportation, a violation of

. Gomez 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 review in light of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40502 -2-

Apprendi v. New Jersey,

(2000). Apprendi did not

overrule Almendarez-Torres. See Apprendi,

-62

& n.15. Gomez’s argument is foreclosed. See Almendarez-Torres,

.

AFFIRMED.