IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10654 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GONZALEZ-RODRIGUEZ, also known as Luis Avina-Gonzalez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:01-CR-1-1-C -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Gonzalez-Rodriguez appeals the 57-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

. Gonzalez-Rodriguez 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 under

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10654 -2-

Gonzalez-Rodriguez 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. Gonzalez-Rodriguez 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). Gonzalez-

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

court is AFFIRMED.

In lieu of filing an appellee’s brief, the Government has

filed a motion to dismiss this appeal. The Government’s motion

to dismiss is DENIED. However, in light of our decision to

affirm the district court’s judgment, the Government need not

file an appellee’s brief.

AFFIRMED; MOTION TO DISMISS DENIED.