IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50756 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL SOTO-RIVAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-96-1 - - - - - - - - - - February 14, 2001

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

PER CURIAM:*

Manuel Soto-Rivas appeals his guilty-plea conviction for

illegally reentering the United States following a prior

deportation, in violation of

(a) and (b). He

argues that: (1) he was not required to show actual prejudice in

order to collaterally attack his previous administrative

deportation; and (2) his indictment was defective for failing to

allege his prior felony conviction as an element of the instant

offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50756 -2-

Soto-Rivas concedes that his first argument is precluded by

our holding in United States v. Benitez-Villafuerte,

(5th Cir. 1999), cert. denied,

(2000), but raises

it for possible Supreme Court review. He concedes that his

second argument is precluded by the Supreme Court’s holding in

Almendarez-Torres v. United States,

(1998), but

argues that the holding in Almendarez-Torres has been cast into

serious doubt by the Supreme Court’s recent decision in Apprendi

v. New Jersey,

,

, 2362 & n.15 (2000).

Because the Apprendi court did not overrule Almendarez-Torres,

Soto-Rivas’s second argument is foreclosed. See United States v.

Dabeit,

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

filed, ___ U.S.L.W. ___ (U.S. Jan. 26, 2001)(No. 00-8299).

Accordingly, the district court’s judgment is AFFIRMED.