IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50856 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARMANDO TORRES-ESPARZA, also known as Armando Esparza,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-104-1 - - - - - - - - - - June 15, 2001 Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:* Armando Torres-Esparza appeals the 57-month sentence imposed following his plea of guilty to a charge of being found in the United States after deportation, a violation of 8 U.S.C. § 1326.

He contends 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 charged in the indictment.

Torres acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50856 - 2 - seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Torres’ plea agreement included a waiver of his right to appeal his sentence except for an upward departure from the Sentencing Guidelines range found by the district court. He asserts that the waiver does not preclude our consideration of the foregoing issue. Furthermore, the district court did not advise Torres of his waiver of the right to appeal as required by Fed. R. Crim. P. 11(c)(6). We need not decide whether the issue is waived because Apprendi did not overrule Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Torres’ argument is foreclosed.

The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that the judgment of the district court be affirmed and that an appellee’s brief not be required. The motion is granted.

AFFIRMED; MOTION GRANTED.