IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50422 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAUL VALENZUELA-URIAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-00-CR-385-ALL-F -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Saul Valenzuela-Urias appeals the 71-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after deportation in violation

of

. Valenzuela-Urias complains that his sentence

was improperly enhanced pursuant to

(b)(2) based

on his prior deportation following an aggravated felony

conviction. Valenzuela-Urias argues that the sentencing

provision violates the Due Process Clause because it permitted

the sentencing judge to find, under a preponderance of the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50422 -2-

evidence standard, a fact which increased the statutory maximum

sentence to which he otherwise would have been exposed.

Valenzuela-Urias thus contends that his sentence is invalid and

argues that it should not exceed the two-year maximum term of

imprisonment prescribed in

(a). Valenzuela-Urias

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). Valenzuela-

Urias’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.