IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40742
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTOS OMAR LUNA-ALMARAZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-61-1
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February 15, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Santos Omar Luna-Almaraz (Luna) appeals his conviction and
46-month sentence following his plea of guilty to attempted
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. Luna argues that the felony conviction that resulted in
his increased sentence under 8 U.S.C. § 1326(b)(2) was an element
of the offense that should have been charged in the indictment.
He acknowledges that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve the issue for Supreme Court review in light of Apprendi
*
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that this opinion should not be published and is not precedent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. 00-40742
-2-
v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi did not overrule
Almendarez-Torres. See Apprendi, 120 S. Ct. at 2361-62 & n.15.
Luna’s argument is foreclosed. See Almendarez-Torres, 523 U.S.
at 235. Accordingly, Luna’s conviction and sentence are
AFFIRMED.