               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 00-50924
                        Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,
versus

JOSE FREDY MARTINEZ-ZELAYA,

                                          Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                  USDC No. DR-00-CR-322-ALL-WWJ
                       - - - - - - - - - -
                          June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Fredy Martinez-Zelaya appeals his sentence following

his guilty plea conviction for illegal re-entry after deportation

in violation of 8 U.S.C. § 1326.    Martinez argues that his

sentence should not have exceeded the two-year maximum sentence

under 8 U.S.C. § 1326(a).     Martinez 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 v. New Jersey, 530 U.S. 466

(2000).

     *
        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that this opinion should not be published and is not precedent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. 00-50924
                              - 2 -

     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, 121 S. Ct. 1214 (2001).

Martinez’s argument is foreclosed by Almendarez-Torres, 523 U.S.

at 235.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is granted.

     AFFIRMED; MOTION GRANTED.
