IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50842 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN MARMOLEJO-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-890-ALL-ECP -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Marmolejo-Rodriguez appeals the 51-month term of

imprisonment imposed following his guilty plea conviction of

attempting to illegally reenter the United States after

deportation in violation of

. Marmolejo-Rodriguez

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. Marmolejo-Rodriguez notes that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50842 -2-

pleaded guilty to an indictment which recited only facts and

elements supporting a charge of simple reentry under

(a), and argues that his sentence exceeds the two-year

maximum term of imprisonment which may be imposed for that

offense. Marmolejo-Rodriguez 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). Marmolejo-

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

court is AFFIRMED.

The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief. In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required. The motion is GRANTED.

AFFIRMED; MOTION GRANTED.