IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41222
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTORIO ZAVALA-ESPARZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-290-1
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December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Victorio Zavala-Esparza appeals the 57-month sentence
imposed following his plea of guilty to a charge of being found
in the United States after deportation, a violation of 8 U.S.C.
§ 1326. He contends 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.
Zavala-Esparza acknowledges that his argument was rejected
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
*
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that this opinion should not be published and is not precedent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. 00-41222
-2-
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Zavala-Esparza’s argument
is foreclosed because Apprendi did not overrule Almendarez-
Torres. See Apprendi, 530 U.S. at 489-90, 496; United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531 U.S.
1202 (2001).
AFFIRMED.