IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50560 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RAMON BALTIER,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. MO-98-CR-144-1-F -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Ramon Baltier 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 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.

Baltier failed to raise this issue in the district court and

therefore his claim is reviewed for plain error. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50560 -2-

States v. Olano,

(1993). Baltier

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 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). Baltier’s

argument is foreclosed and no plain error occurred. The judgment

of the district court is AFFIRMED.