IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41222 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTORIO ZAVALA-ESPARZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-290-1 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Victorio Zavala-Esparza appeals the 57-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of

. He contends that the felony conviction that resulted in

his increased sentence under

(b)(2) was an element

of the offense that should have been charged in the indictment.

Zavala-Esparza acknowledges that his argument was rejected

by the Supreme Court’s decision in Almendarez-Torres v. United

States,

(1998), but he seeks to preserve the issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41222 -2-

for Supreme Court review in light of the decision in Apprendi v.

New Jersey,

(2000). Zavala-Esparza’s argument

is foreclosed because Apprendi did not overrule Almendarez-

Torres. See Apprendi,

; United States v.

Dabeit,

(5th Cir. 2000), cert. denied,

(2001).

AFFIRMED.