IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50446 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL CERVANTES-CHAVEZ, also known as Joel Cervantes,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-2088-ALL-H -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Joel Cervantes-Chavez appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

. Cervantes-Chavez 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.

Cervantes-Chavez argues that the sentencing provision violates

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50446 -2-

the Due Process Clause because it permitted 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. Cervantes-Chavez thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in

(a). Cervantes-Chavez 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).

Cervantes-Chavez’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.