IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20804 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR MANUEL MONTES-MANZANO, also known as Victor Manual Montes Manzano,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-172-1 -------------------- April 11, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Victor Manuel Montes-Manzano (Montes) appeals the 41-month

sentence imposed following his guilty plea to a charge of being

found present in the United States after deportation, a violation

of

. Relying on Apprendi v. New Jersey,

(2000), Montes argues that the aggravated-felony conviction

that resulted in his enhanced sentence under

(b)(2) was an element of the offense that should have been

alleged in the indictment. As Montes acknowledges, however, his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20804 -2-

argument remains foreclosed by Almendarez-Torres v. United

States,

(1998). See United States v. Dabeit,

(5th Cir. 2000)(stating that Apprendi did not

overrule Almendarez-Torres), cert. denied,

(2001).

Montes also challenges a sixteen-level increase to his base

offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A).

Specifically, Montes argues that his prior Texas conviction for

possession of less than one gram of cocaine does not qualify as

an “aggravated felony” for purposes of § 2L1.2. Montes’

argument, however, is foreclosed by our decision in United States

v. Hinojosa-Lopez,

(5th Cir. 1997). Montes

maintains that this issue is not foreclosed by Hinojosa-Lopez

because he raises it as a rule-of-lenity argument. “The rule of

lenity . . . applies only when, after consulting traditional

canons of statutory construction, [a court is] left with an

ambiguous statute.” United States v. Shabani,

(1994)(emphasis added). It follows from the interpretation

reached by this court in Hinojosa-Lopez that the term “aggravated

felony” is not so ambiguous as to require an application of the

rule of lenity. See Hinojosa-Lopez,

.

AFFIRMED.