IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40306 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER HERNANDEZ-PESINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-00-CR-1168-ALL -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Javier Hernandez-Pesina appeals his guilty-plea conviction

and sentence for illegal reentry after deportation. Hernandez

contends that his indictment was insufficient because it failed

to expressly allege general intent and that the district court

erred in applying U.S.S.G. § 2L1.2(b)(1)(A) to increase his

offense level because his pre-deportation state felony conviction

was not an aggravated felony.

Hernandez concedes that his arguments are foreclosed by

circuit precedent but seeks to preserve the issues for Supreme

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40306 -2-

Court review. The arguments are foreclosed. See United States

v. Berrios-Centeno,

(5th Cir.), cert.

denied,

(2001); United States v. Hinojosa-Lopez,

(5th Cir. 1997). The judgment of the

district court is AFFIRMED.