IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50589 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIAS LIRA-ESPINOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-552-ALL-DB -------------------- October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Elias Lira-Espinoza appeals the 70-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

. Lira-Espinoza contends that

(a)

and

(b)(2) define separate offenses. He argues

that the aggravated felony conviction that resulted in his

increased sentence was an element of the offense under

(b)(2) that should have been alleged in his indictment.

Lira-Espinoza notes that he pleaded guilty to an indictment which

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50589 -2-

recited only facts and elements supporting a charge of simple

reentry under

(a), and argues that his sentence

exceeds the two-year maximum term of imprisonment which may be

imposed for that offense. Lira-Espinoza 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). Lira-

Espinoza’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.