IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40975 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS ZARATE-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-00-101-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Jesus Zarate-Hernandez appeals his conviction and 70-month

sentence for being found in the United States after deportation

in violation of

.

Zarate-Hernandez contends that the felony conviction that

resulted in his increased sentence under

(b)(2) is

an element of the offense that must have been charged in the

indictment. Zarate-Hernandez acknowledges that this argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States,

(1998), but he seeks to preserve

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40975 -2-

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, __ U.S. __, No. 00-8299,

(Feb. 26, 2001), .

As Zarate-Hernandez concedes, his argument is foreclosed.

His conviction and sentence are AFFIRMED.