IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41464 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE GABRIEL ORTIZ RAMIREZ, also known as Francisco Capdsan,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-291-1 -------------------- December 12, 2001 Before HIGGINGBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Gabriel Ortiz Ramirez pleaded guilty to an indictment

charging him for being an alien found unlawfully in the United

States following deportation. Ramirez has appealed his sentence.

Ramirez's sentence was enhanced pursuant to

(b)(2) because he was convicted for an aggravated felony

prior to his deportation. Ramirez contends that the prior felony

conviction was an element of the offense that should have been

charged in the indictment. Ramirez acknowledges that his

argument is foreclosed by the Supreme Court’s decision in

Almendarez-Torres v. United States,

(1998), but he

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-41464 -2-

seeks to preserve the issue for further review in light of

Apprendi v. New Jersey,

(2000). Apprendi did

not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir.

2000), cert. denied,

(2001).

AFFIRMED.