IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41301 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN LOPEZ-MONTES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-270-ALL -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Martin Lopez-Montes appeals the 41-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 felony conviction that resulted in his

increased sentence under

(b)(2) was an element of

the offense that should have been alleged in the indictment.

Lopez 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41301 -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). Lopez’s

argument is foreclosed. The judgment of the district court is

AFFIRMED.