IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41156 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REMEDIOS HURTADO-HILARIO, also known as Roberto Herrera-Garcia, also known as Remedios Hurtado-Hilario,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-01-CR-276-1 -------------------- October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Remedios Hurtado-Hilario appeals the 37-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after deportation, a violation of

. He contends that the felony conviction that resulted in

his increased sentence under

(b)(2) was an element

of the offense that should have been charged in the indictment.

Hurtado-Hilario acknowledges that his argument is foreclosed

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

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41156 -2-

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). Hurtado-

Hilario’s argument is foreclosed. The judgment of the district

court is AFFIRMED.