IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20766 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDGAR ESQUINCA-MEJIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-54-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Edgar Esquinca-Mejia appeals the 77-month sentence imposed

following his plea of guilty to a charge of being found in the

United States after deportation, a violation of

.

He contends that the aggravated-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.

Esquinca-Mejia acknowledges that his argument is foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20766 -2-

States,

(1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi v.

New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). Esquinca-

Mejia’s argument is foreclosed. The judgment of the district

court is AFFIRMED.