IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50546 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM ANTONIO PONCE-AVILLAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-716-1 -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

William Antonio Ponce-Avillas 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

. Ponce-Avillas 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.

Ponce-Avillas argues that the sentencing provision violates the

Due Process Clause because it permitted the sentencing judge to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50546 -2-

find, under a preponderance of the evidence standard, a fact

which increased the statutory maximum sentence to which he

otherwise would have been exposed. Ponce-Avillas thus contends

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

the two-year maximum term of imprisonment prescribed in

(a). Ponce-Avillas 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). Ponce-

Avillas’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.