IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20824 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JERSON OBED BRIZUELA-PAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-173-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Jerson Obed Brizuela-Paz appeals the 71-month sentence

imposed following his plea of guilty to being found in the United

States after deportation, a violation of

. He

contends that the 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.

Brizuela acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

(1998), but he seeks to preserve the issue for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20824 -2-

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).

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

court is AFFIRMED.