IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21306
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE JAVIER DOMINGUEZ-VILLARREAL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-464-ALL
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Jose Javier Dominguez-Villarreal appeals the 96-month
sentence imposed following his plea of guilty to a charge of
being found in the United States after deportation following an
aggravated-felony conviction, a violation of 8 U.S.C. § 1326(a)
& (b)(2). He contends that 8 U.S.C. § 1326(b)(2) is
unconstitutional because it treats a prior aggravated-felony
conviction as a mere sentencing factor and not an element of the
offense.
*
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that this opinion should not be published and is not precedent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. 01-21306
-2-
Dominguez-Villarreal acknowledges that his argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve
the issue for Supreme Court review in light of the decision in
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 531 U.S. 1202 (2001). Dominguez-
Villarreal’s argument is foreclosed. The judgment of the
district court is AFFIRMED.