IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50638 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ROBERTO RIOS-HERNANDEZ, also known as Roberto Hernandez-Rios,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-35-1-H - - - - - - - - - - February 15, 2001

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

PER CURIAM:*

Roberto Rios-Hernandez appeals his sentence following his

guilty plea conviction for illegal re-entry after deportation in

violation of

. Rios argues that his sentence

should not have exceeded the two-year maximum sentence under

(a). Rios 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 Jersey,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50638 - 2 -

Rios’ argument is foreclosed by Almendarez-Torres,

.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is granted.

AFFIRMED; MOTION GRANTED.