IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-21153 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO GONZALES-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-385-1 -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ricardo Gonzales-Garcia 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

. He argues that the felony conviction that resulted in

his increased sentence under

(b)(2) was an element

of the offense and not a sentencing enhancement.

Gonzales acknowledges that his argument is foreclosed by the

Supreme Court’s decision in Almendarez-Torres v. United States,

(1998), but he seeks to preserve the issue for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-21153 -2-

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). This argument is foreclosed.

The judgment of the district court is AFFIRMED.