IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10887 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRISTOBAL MARTINEZ-HERNANDEZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:00-CR-29-1 - - - - - - - - - - February 15, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Cristobal Martinez-Hernandez appeals his sentence following

his guilty plea conviction for illegal reentry following

deportation in violation of

(a) and (b).

Martinez-Hernandez argues that a prior felony conviction is an

element of the offense that must be alleged in the indictment

rather than a sentencing factor. Martinez-Hernandez 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 the light of Apprendi v. New

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-10887 -2-

Jersey,

(2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi,

-62 & n.15;

see also United States v. Dabeit,

(5th Cir.

2000), petition for cert. filed, (U.S. Jan. 26, 2001)(No. 00-

8299).

As Martinez-Hernandez’s sole argument for appeal is

foreclosed, the district court’s judgment of conviction is

AFFIRMED.