IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40559 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER MOTINA1-GARCIA, also known as Javier Molina-Garcia,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-32-1 - - - - - - - - - - February 15, 2001

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

PER CURIAM:**

Javier Motino-Garcia appeals his sentence following his

guilty-plea conviction for illegal reentry following deportation

in violation of

(a) and (b). Motino argues that a

prior felony conviction is an element of the offense rather than

a sentencing factor and that it must be alleged in the

indictment. Motino acknowledges that his argument is foreclosed

1 Although appellant’s name is spelled with an “a” (Motina) throughout the record, he stated at the guilty plea hearing that the correct spelling is Motino. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40559 -2-

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 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). This argument is therefore

foreclosed.

Motino also argues that if Almendarez-Torres remains good

law after Apprendi, his sentence still must be vacated because

the indictment failed to allege that his prior conviction

occurred before his last deportation, as opposed to occurring

prior to being “found” by the INS. Motino cites no case law in

support of this argument, and he admits that he failed to raise

the issue in the district court. Motino cannot show plain error

as a result of the language in the indictment. See United States

v. Meshack,

(5th Cir. 2000), cert. denied,

(2001); United States v. Rios-Quintero,

(5th Cir.), cert. denied,

(2000).

AFFIRMED.