IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50281 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus BALTAZAR LOPEZ-GUERRERO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1498 -------------------- October 29, 2001 Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:* Baltazar Lopez-Guerrero appeals the 30-month term of imprisonment imposed following his bench-trial conviction of illegal reentry into the United States after deportation, a violation of 8 U.S.C. § 1326. Lopez-Guerrero complains that his sentence was enhanced pursuant to 8 U.S.C. § 1326(b)(2), which allowed the court to impose up to a twenty-year term of imprisonment because he was removed after being convicted of an aggravated felony. Lopez-Guerrero argues that the sentencing provision violates the Due Process Clause because it permitted * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50281 -2- the sentencing judge to find, under a preponderance of the evidence standard, a fact which increased the statutory maximum sentence to which he otherwise would have been exposed. Lopez- Guerrero thus contends that his sentence is invalid and argues that it should not exceed the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Lopez-Guerrero acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001). Lopez- Guerrero’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.