IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40668 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORIO MARTINEZ-CASTRO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-93-1 -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Gregorio Martinez-Castro appeals his sentence following his

guilty plea conviction for illegal re-entry after deportation in

violation of

(a) and (b). Martinez-Castro argues

that his prior felony conviction was an element of the offense of

the instant conviction that had to be alleged in the indictment.

Martinez-Castro acknowledges that his argument is foreclosed by

Almendarez-Torres v. United States,

(1998), but he

seeks to preserve the issue for possible Supreme Court review in

light of Apprendi v. New Jersey,

(2000).

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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. 00-40668 -2-

Martinez-Castro's argument is foreclosed by Almendarez-

Torres,

.

AFFIRMED.