IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11084 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO GARCIA-BALCAZAR, also known as Luciano Garcia-Balcazar,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:01-CR-10-1 -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Pedro Garcia-Balcazar appeals the 37-month term of

imprisonment imposed following his guilty plea conviction of

reentry into the United States after deportation in violation of

. Garcia-Balcazar 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.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11084 -2-

Garcia-Balcazar notes that he pleaded guilty to an indictment

which recited only facts and elements supporting a charge of

simple reentry under

(a), and he argues that his

sentence exceeds the two-year maximum term of imprisonment which

may be imposed for that offense. Garcia-Balcazar 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). Garcia-

Balcazar’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. The

Government’s motion to dismiss is DENIED. The Government need not

file an appellee’s brief.

AFFIRMED; MOTION TO DISMISS DENIED.