IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20257 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ASCENCION BAHENA-LAGUNAS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-781-1 -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ascencion Bahena-Lagunas appeals from a 70-month sentence on

his conviction for being found in the United States after having

been deported in violation of

. Bahena-Lagunas

argues that the district court erred in denying his motion to

suppress evidence of his prior administrative deportation.

Bahena-Lagunas contends the prior deportation proceeding violated

his due process rights. Bahena-Lagunas concedes that his

argument is foreclosed by United States v. Benitez-Villafuerte,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20257 -2-

(5th Cir. 1999), however he seeks to preserve his

arguments for Supreme Court review. In Benitez-Villafuerte, this

court held that administrative deportation proceedings under

comport with due process and that evidence of

such deportation proceedings is admissible in a subsequent

criminal prosecution under

.

.

Bahena-Lagunas also argues for the first time on appeal

that the sentencing provisions of

(b)(1) & (2) are

unconstitutional in light of the Supreme Court’s holding in

Apprendi v. New Jersey,

(2000). Bahena-Lagunas

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.

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

(5th Cir. 2000), cert. denied,

(2001). Bahena-

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

court is AFFIRMED.