IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20318 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME ALBERTO ARGUETA-VENTURA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-596-1 -------------------- October 15, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Jaime Alberto Argueta-Ventura appeals the 57-month sentence

imposed following his plea of guilty to illegal reentry into in

the United States after deportation, a violation of

.

Argueta-Ventura contends that his prior 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. Argueta-Ventura acknowledges that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20318 -2-

argument is foreclosed by Almendarez-Torres 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,

(2001). Argueta-Ventura’s argument is

foreclosed.

Argueta-Ventura argues that the district court erred in

denying him a downward departure based on his cultural

assimilation into this country in the mistaken belief that it

lacked the authority to depart. The record does not support

appellant’s argument. As we read the record, the district court

denied the downward departure because it concluded that the

departure was not justified under the circumstances.

For the above reasons, we affirm appellant’s conviction and

sentence.

AFFIRMED.