IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40921 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODOLFO MORENO-CRUZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-72-1 -------------------- February 15, 2001

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

PER CURIAM:*

Rodolfo Moreno-Cruz appeals his sentence following a guilty

plea to illegal reentry into the United States following

deportation. See

. Moreno 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 possible Supreme

Court review in the light of Apprendi v. New Jersey, 120 S. Ct.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40921 -2-

2348 (2000). Apprendi did not overrule Almendarez-Torres. See

Apprendi, 120 S. Ct. at 2361-62 & n.15. Moreno’s argument is

foreclosed. See Almendarez-Torres,

.

Accordingly, Moreno’s sentence is AFFIRMED.