IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50047 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ULISES HERNANDEZ-LAZO, also known as Ulises Hernandez, also known as Ulises Lazo, also known as Ulises Lazo Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-99-CR-195-ALL-HFG -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ulises Hernandez-Lazo challenges as unconstitutional the

70-month term of imprisonment imposed following his guilty plea

conviction of being found in the United States after removal in

violation of

. Hernandez-Lazo contends that

(a) and

(b)(2) define separate

offenses. He argues that the aggravated felony conviction that

resulted in his increased sentence was an element of the offense

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50047 -2-

under

(b)(2) that should have been alleged in his

indictment. Hernandez-Lazo notes that he pleaded guilty to an

indictment which recited only facts and elements supporting a

charge of simple reentry under

(a), and argues

that his sentence exceeds the two-year maximum term of

imprisonment which may be imposed for that offense. Hernandez-

Lazo acknowledges that his argument is foreclosed by the Supreme

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

(1998), but 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).

Hernandez-Lazo’s argument is foreclosed. The judgment of the

district court is AFFIRMED.

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.