IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50822 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER JIMENEZ-HERNANDEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-459-ALL-DB -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Javier Jimenez-Hernandez appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

. He contends that the sentence is invalid

because it exceeds the two-year maximum term of imprisonment

prescribed in

(a).

Jimenez-Hernandez complains that his sentence was improperly

enhanced pursuant to

(b)(2) based on his prior

removal following an aggravated felony conviction. He argues

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50822 -2-

that the sentencing provision violates the Due Process Clause.

Alternatively, Jimenez-Hernandez 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.

Jimenez-Hernandez acknowledges that his arguments are foreclosed

by the Supreme Court’s decision in Almendarez-Torres v. United

States,

(1998), but seeks to preserve the issues 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). Jimenez-

Hernandez’s arguments are 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.