IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10285 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MELITON BONILLA-CASTANEDA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-282-ALL-X - - - - - - - - - - October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Meliton Bonilla-Castaneda (Bonilla) appeals the 71-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.

Bonilla acknowledges that his argument is foreclosed by the

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10285 -2-

(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). Bonilla’s

argument is foreclosed. 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 the Government requests an affirmance.