IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50743 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

UMBERTO HERNANDEZ-VASQUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CR-143-ALL-JN -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Umberto Hernandez-Vasquez appeals the 77-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

. Hernandez-Vasquez complains that his sentence

was improperly enhanced pursuant to

(b)(2) based

on his prior removal following an aggravated felony conviction.

Hernandez-Vasquez argues that the sentencing provision violates

the Due Process Clause because it permitted the sentencing judge

to find, under a preponderance of the evidence standard, a fact

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50743 -2-

which increased the statutory maximum sentence to which he

otherwise would have been exposed. Hernandez-Vasquez thus

contends that his sentence is invalid and argues that it should

not exceed the two-year maximum term of imprisonment prescribed

in

(a). Hernandez-Vasquez 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). Hernandez-

Vasquez’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.