IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40742 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTOS OMAR LUNA-ALMARAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-61-1 -------------------- February 15, 2001

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

PER CURIAM:*

Santos Omar Luna-Almaraz (Luna) appeals his conviction and

46-month sentence following his plea of guilty to attempted

illegal reentry after deportation in violation of

. Luna 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.

He acknowledges that his 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40742 -2-

v. New Jersey,

(2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi,

-62 & n.15.

Luna’s argument is foreclosed. See Almendarez-Torres,

. Accordingly, Luna’s conviction and sentence are

AFFIRMED.