IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50456 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE MARTINEZ-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1713-ALL-DB -------------------- December 14, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Jorge Martinez-Perez appeals his sentence following a guilty

plea conviction for illegal reentry after deportation, a

violation of

. He was sentenced pursuant to

(b)(2) as an alien previously deported after an

aggravated felony. Martinez argues that

(b)(2)

defines a separate offense and includes the additional element of

an aggravated felony; because his indictment did not include this

element, he argues his sentence under

(b)(2)

violates due process. See blue brief, 7. In the alternative, he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50456 -2-

argues that

(b)(2) is an unconstitutional

sentencing enhancement.

Martinez acknowledges that his arguments are foreclosed by

Almendarez-Torres v. United States,

(1998), but he

seeks to preserve these issues for possible Supreme Court review

in light of Apprendi v. New Jersey,

(2000).

However, until overruled by the Supreme Court, these arguments

remain foreclosed by the decision in Almendarez-Torres. See

United States v. Dabeit, No. 00-10065,

(5th Cir. Oct. 30, 2000).

AFFIRMED.