IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10898 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO SALINAS-CALDERON, also known as Gerardo Calderon Salinas, also known as Omar Chacon,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CR-474-1-D -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Gerardo Salinas-Calderon appeals his guilty plea conviction

of being found in the United States after removal in violation of

. He argues that his guilty plea was involuntary.

Salinas-Calderon contends that the district court failed to

advise him during the plea colloquy that a prior aggravated

felony conviction is an element of the offense under

(b)(2), which the government would have to prove to a jury

beyond a reasonable doubt. Salinas-Calderon acknowledges that

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10898 -2-

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). Salinas-

Calderon’s argument is foreclosed. The judgment of the district

court is AFFIRMED.

In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment. The Government’s motion to dismiss is DENIED. The

motion for a summary affirmance is GRANTED. The Government need

not file an appellee’s brief.

AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY AFFIRMANCE GRANTED.