IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50458 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR MANUEL OROZCO-TARIN, also known as Hector Ortega, also known as Hector Manuel Carrillo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-2040-ALL-H -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Hector Manuel Orozco-Tarin 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

. Orozco-Tarin 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.

Orozco-Tarin argues that the sentencing provision violates the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50458 -2-

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. Orozco-Tarin thus contends

that his sentence is invalid and argues that it should not exceed

the two-year maximum term of imprisonment prescribed in

(a). Orozco-Tarin 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). Orozco-

Tarin’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.