IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50378 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAFAEL OLIVARES-AGUIRRE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1342-ALL-H -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Rafael Olivares-Aguirre appeals the 37-month term of

imprisonment imposed following his guilty plea conviction of

attempting to illegally reenter the United States after removal

in violation of

. Olivares-Aguirre complains that

his sentence was enhanced pursuant to

(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. Olivares-Aguirre 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50378 -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.

Olivares-Aguirre thus contends that his sentence is invalid and

argues that it should not exceed the two-year maximum term of

imprisonment prescribed in

(a). Olivares-Aguirre

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). Olivares-

Aguirre’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.