IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50262 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO GARCIA-ORRANTIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-1717-ALL-EP -------------------- December 12, 2002

Before JOLLY, JONES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Arturo Garcia-Orrantia appeals the 46-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

. Garcia-Orrantia argues that the sentencing provision of

(b)(2) is unconstitutional in light of the Supreme

Court’s holding in Apprendi v. New Jersey,

(2000).

Garcia-Orrantia 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50262 -2-

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). Garcia-

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

court is AFFIRMED.