
    UNITED STATES of America, Appellee, v. Rene VICIOSO-AYRA, Defendant-Appellant.
    Docket No. 01-1051.
    United States Court of Appeals, Second Circuit.
    June 19, 2001.
    
      Gene V. Primomo, Ass’t Pub. Defender, Albany, NY, for appellant.
    Barbara D. Cottrell, Ass’t U.S. Att’y, NDNY, Albany, NY, for appellee.
    Present Van GRAAFEILAND, KEARSE, Circuit Judges, and SEYBERT, District Judge.
    
    
      
       Honorable Joanna Seybert, of the United States District Court for the Eastern District of New York, sitting by designation.
    
   SUMMARY ORDER

This cause came on to be heard on the record from the United States District Court for the Northern District of New York, and was submitted by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed.

Defendant Rene Vicioso-Ayra, appeals from a judgment entered in the United States District Court for the Northern District of New York, following his plea of guilty before Lawrence E. Kahn, Judge, convicting him of being found in the United States without the permission of the United States Attorney General, after having been deported following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326, and sentencing him principally to 49 months’ imprisonment. On appeal, he contends that a sentence longer than two years was improper under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the indictment did not allege his prior conviction of an aggravated felony, and such a conviction was neither admitted by him nor proven beyond a reasonable doubt. He concedes that such a sentence was nonetheless permissible in light of the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and that Apprendi did not overrule Almendarez-Torres; however, he pursues this appeal in order to preserve the issue for review in the Supreme Court. (See Vicioso-Ayra brief on appeal at 6.) We conclude that the appeal lacks merit for the reasons stated in United States v. Latorre-Benavides, 241 F.3d 262, 264 (2d Cir.) (per curiam), cert. denied, — U.S. -, 121 S.Ct. 2013, 149 L.Ed.2d 1014 (2001).

We have considered all of Vicioso-Ayra’s contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.  