IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10159 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO SALAS-VELOS, also known as Francisco Velos-Salas,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-277-ALL-L -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Francisco Salas-Velos appeals the 46-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.

Salas-Velos acknowledges that his argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10159 -2-

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).

Salas-Velos’ argument is foreclosed by Almendarez-Torres. The

judgment of the district court is AFFIRMED.

The Government has moved for a summary affirmance or

dismissal of the appeal. The motion is GRANTED to the extent

that affirmance is requested.