IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40113 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MAURO GONZALEZ-MEDINA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-98-CR-529-1 - - - - - - - - - - February 15, 2001

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

PER CURIAM:*

Mauro Gonzalez-Medina appeals his sentence following his

guilty-plea conviction for illegal reentry after deportation in

violation of

(a) and (b)(2). Gonzalez-Medina

argues that his pre-deportation aggravated felony conviction,

which resulted in his increased sentence under

(b)(2), was an element of the offense that should have been

charged in his indictment. Gonzalez-Medina acknowledges that his

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

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40113 -2-

possible Supreme Court review in light of Apprendi v. New Jersey,

, 2362 & n.15 (2000).

While the Apprendi court acknowledged that Almendarez-Torres

may have been incorrectly decided, it did not overrule

Almendarez-Torres. See Apprendi,

& n.15; see

also United States v. Dabeit,

(5th Cir. 2000),

petition for cert. filed (U.S. Jan. 26, 2001) (No. 00-8299).

Gonzalez-Medina’s argument is thus foreclosed by the Supreme

Court’s decision in Almendarez-Torres,

, which

this court is compelled to follow. See Dabeit,

.

The district court’s judgment is AFFIRMED.