IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40768 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GUADALUPE LUVIANO-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-77-1 -------------------- February 15, 2001

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

PER CURIAM:*

Jose Guadalupe Luviano-Gonzalez appeals the sentence imposed

following his guilty-plea conviction for re-entering the United

States illegally after deportation in violation of

. Luviano-Gonzalez’ appeal stems from the fact that his

sentence was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A). He

argues that in view of the Supreme Court's recent decision in

Apprendi v. New Jersey,

(2000), his

sentence should be vacated because it exceeds the two-year

statutory maximum sentence for a violation of

(a).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40768 -2-

Luviano-Gonzalez also 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

his indictment.

Luviano-Gonzalez acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States,

(1998), and states that he is raising the issue to preserve

it for possible Supreme Court review. Although the Supreme Court

noted that Almendarez-Torres may have been incorrectly decided,

the Supreme Court did not expressly overrule it in Apprendi.

Apprendi,

& n.15. Luviano-Gonzalez’ argument

is foreclosed by Almendarez-Torres.

AFFIRMED.