IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41063 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SAMUEL DE JESUS MARROQUIN-ALCANTARA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-368-1 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Samuel De Jesus Marroquin-Alcantara appeals the 41-month

sentence imposed following his plea of guilty to a charge of

being found in the United States after having been deported in

violation of

. He contends for the first time on

appeal that

(b)(2) is unconstitutional because it

does not require the prior aggravated felony conviction used to

increase his sentence to be proven as an element of the offense.

He argues that his conviction should be reformed to the lesser

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41063 - 2 -

included offense in

(a) and that he should be

resentenced to no more than 2 years of imprisonment.

Marroquin 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). Marroquin’s

argument is foreclosed. The judgment of the district court is

AFFIRMED.