IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50419 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL MOLINA-SANTILLAN,

Defendant-Appellant

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-1561-1-H -------------------- February 15, 2001

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

PER CURIAM:*

Gabriel Molina-Santillan argues that

(b) was

unconstitutionally applied at his sentencing because he received

an enhanced sentence based on a prior conviction that was not

alleged in his indictment, which deprived him of his Sixth

Amendment right to a jury trial on all the elements of his

offense. Molina also argues that the sentence imposed violated

due process because it exceeded the maximum statutory penalty for

the offense charged in the indictment.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50419 -2-

Molina concedes 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

light of Apprendi v. New Jersey,

,

(2000). He also acknowledges that he did not raise his arguments

in the district court and, thus, review for plain error is

appropriate. Apprendi did not overrule Almendarez-Torres. See

Apprendi,

-62 & n.15; see also United States v.

Dabeit,

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

filed, (U.S. Jan. 26, 2001)(No. 00-8299); United States v.

Doggett,

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

filed, (U.S. Jan. 4, 2001) (No. 00-7819).

As Molina’s arguments for appeal are foreclosed, he has

failed to show that the district court committed error, plain or

otherwise, in imposing sentence. Molina’s judgment of conviction

is AFFIRMED.