IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41011 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIO FIGUEROA-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-216-1 -------------------- April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Julio Figueroa-Martinez 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.

Figueroa-Martinez acknowledges that his argument is

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41011 -2-

v. United 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, (U.S. Feb. 26, 2001)(No. 00-8299).

Figueroa-Martinez’s argument is foreclosed. The judgment of the

district court is AFFIRMED.