IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11176 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN MEDELLIN-BARBOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:00-CR-20-ALL -------------------- February 15, 2001

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

PER CURIAM:*

Julian Medellin-Barboza appeals his sentence following his

plea of guilty to illegal reentry after deportation in violation

of

. Medellin-Barboza 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 the indictment and, because it was not, that he was

charged with and pleaded guilty to the offense of simple reentry,

in violation of

(a), which has a statutory maximum

penalty of two years’ imprisonment. He acknowledges that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-11176 -2-

argument is foreclosed by Almendarez-Torres v. United States,

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

Court review in light of Apprendi v. New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

-62 & n.15; United States v. Dabeit,

(5th Cir. 2000), petition for cert. filed (U.S. Jan. 26,

2001)(No. 00-8299). Medellin-Barboza’s argument is foreclosed.

See Almendarez-Torres,

. Accordingly, Medellin-

Barboza’s sentence is AFFIRMED.