IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40886 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOAQUIN PINA-CLIVILLE Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-204-1 -------------------- February 15, 2001

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

PER CURIAM:*

In this appeal following his guilty-plea conviction for

illegally reentering the United States after having been

deported, in violation of

(a) and (b)(2), Joaquin

Pina-Cliville (Pina) argues that a prior felony conviction is an

element of the offense of illegal reentry and not merely a

sentencing factor. Pina 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 the light of Apprendi v. New Jersey,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40886 -2-

(2000), wherein the Supreme Court stated that it was arguable

that Almendarez-Torres was decided incorrectly. In light of the

clear precedent of Almendarez-Torres, Pina fails to show that his

sentence should be vacated. See United States v. Dabeit,

(5th Cir. 2000), petition for cert. filed, (Jan.

26, 2001)(No. 00-8299).

The judgment of the district court is AFFIRMED.