IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40739 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE VILLAFRANCA-CABRERA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-78-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Jose Villafranca-Cabrera appeals his 41-month sentence

following his plea of guilty to a charge of illegal re-entry to

the United States after deportation, a violation of

. Villafranca-Cabrera asserts that the felony conviction

that resulted in his increased sentence under

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

alleged in the indictment. He acknowledges that his argument is

foreclosed by Almendarez-Torres v. United States,

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40739 -2-

Court review in light of Apprendi v. New Jersey,

(2000). Villafranca-Cabrera’s argument is foreclosed.

See Almendarez-Torres,

.

AFFIRMED.