IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21306 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE JAVIER DOMINGUEZ-VILLARREAL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-464-ALL -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Jose Javier Dominguez-Villarreal appeals the 96-month

sentence imposed following his plea of guilty to a charge of

being found in the United States after deportation following an

aggravated-felony conviction, a violation of

(a)

& (b)(2). He contends that

(b)(2) is

unconstitutional because it treats a prior aggravated-felony

conviction as a mere sentencing factor and not an element of the

offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21306 -2-

Dominguez-Villarreal acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States,

(1998), but he 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). Dominguez-

Villarreal’s argument is foreclosed. The judgment of the

district court is AFFIRMED.