IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50862 Conference Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE CASILLAS-OROSCO, also known as Jose Casillas-Ramirez, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-371-ALL-DB -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:* Jose Casillas-Orosco appeals the 70-month term of imprisonment imposed following his guilty plea conviction of attempting to illegally reenter the United States after being excluded in violation of 8 U.S.C. § 1326. Casillas-Orosco complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b)(2) based on his prior exclusion following an aggravated felony conviction. Casillas-Orosco argues that the sentencing provision violates the Due Process Clause because it permitted the sentencing judge to find, under a preponderance of * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50862 -2- the evidence standard, a fact which increased the statutory maximum sentence to which he otherwise would have been exposed.

Casillas-Orosco thus contends that his sentence is invalid and argues that it should not exceed the two-year maximum term of imprisonment prescribed in 8 U.S.C. § 1326(a). Casillas-Orosco acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). Casillas- Orosco’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.