IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50249 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSÉ ALEJANDRO HERRERA-PENA, also known as Alejandro José Herrera-Pena, also known as Alejandro Herrera,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-434-ALL-OG - - - - - - - - - - December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

José Alejandro Herrera-Pena appeals his sentence following

his guilty plea conviction for illegal reentry following

deportation in violation of

(a) and (b). Herrera-

Pena argues that a prior felony conviction is an element of the

offense that must be alleged in the indictment rather than a

sentencing factor. Herrera-Pena acknowledges that his argument

is foreclosed by Almendarez-Torres v. United States,

(1998), but he seeks to preserve the issue for possible Supreme

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50249 -2-

Court review in the 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).

As Herrera-Pena’s sole argument for appeal is foreclosed,

the district court’s judgment of conviction is AFFIRMED.