IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40787 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO RIOS-PEÑA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-133-1 - - - - - - - - - - February 15, 2001

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

PER CURIAM:*

Arturo Rios-Peña (Rios) appeals his conviction and 46-month

prison sentence following a plea of guilty to illegal re-entry

into the United States after deportation. See

.

Rios 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 v. New

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40787 -2-

Jersey,

(2000). Apprendi did not overrule

Almendarez-Torres. See Apprendi,

-62 & n.15.

Rios’ argument is foreclosed. See Almendarez-Torres,

. Accordingly, Rios’ conviction and sentence are AFFIRMED.