IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41304 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO MARTINEZ-GUEVARA, also known as Ramon Vega Benegas,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-314-1 -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Gilberto Martinez-Guevara 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 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.

Martinez-Guevara 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41304 -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,

(2001). Martinez-

Guevara’s argument is foreclosed. The judgment of the district

court is AFFIRMED.