IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40908 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE ALEJANDRO DOMINGUEZ-ALARCON, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-CR-172-1 -------------------- April 12, 2001 Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:* Jose Alejandro Dominguez-Alarcon appeals his 70-month sentence following his plea of guilty to a charge of illegal re-entry to the United States after deportation, a violation of 8 U.S.C. § 1326. Dominguez-Alarcon asserts that the felony conviction that resulted in his increased sentence under 8 U.S.C. § 1326(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, 523 U.S. 224, 226-27 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40908 -2- Court review in light of Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000). Dominguez-Alarcon’s argument is foreclosed. See Almendarez-Torres, 523 U.S. at 235.

AFFIRMED.