IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40784 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE OMAR ACOSTA-ALVAREZ, also known as Antony Omar Rodriguez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-135-1 -------------------- February 15, 2001

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

PER CURIAM:*

Jose Omar Acosta-Alvarez (Acosta) appeals his conviction and

77-month sentence following his plea of guilty to illegal reentry

after deportation in violation of

. Acosta 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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40784 -2-

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.

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

. Accordingly, Acosta’s conviction and sentence are

AFFIRMED.