IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10814 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FLORENCIO ZUNIGA-SOLIS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 6:00-CR-33-ALL-C -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Florencio Zuniga-Solis appeals the 51-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after deportation in violation

of

. Zuniga-Solis 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. Zuniga-Solis notes that he pleaded guilty to an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-10814 -2-

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. Zuniga-Solis

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). Zuniga-

Solis’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 to dismiss this appeal. The Government’s motion

to dismiss is DENIED. However, in light of our decision to

affirm the district court’s judgment, the Government need not

file an appellee’s brief.

AFFIRMED; MOTION TO DISMISS DENIED.