                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-41660
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICTOR ENRIQUE DIAZ, also known as Wilken Romero,

                                    Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 2:04-CR-321-ALL
                         --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Counsel appointed to represent Victor Enrique Diaz has

requested leave to withdraw and has filed a brief as required by

Anders v. California, 386 U.S. 738 (1967).    Diaz has filed a

response.

     Our independent review of counsel’s brief, Diaz’s response,

and the record discloses one possible nonfrivolous issue.       Diaz’s

offense level and sentence were increased for his having been

removed after a conviction for a prior drug-trafficking offense

that was not alleged in the indictment.   An argument that the

     *
       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this opinion should not be published and is not precedent except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. 04-41660
                                 -2-

prior conviction should have been alleged in the indictment is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).   However, the continuing validity of Almendarez-Torres

has been called into question by Apprendi v. New Jersey, 530 U.S.

466, 489 (2000).   Counsel thus could have raised the issue on

appeal in order to preserve it for Supreme Court review.

     Because this is a possible nonfrivolous issue for appeal, we

DENY counsel’s motion to withdraw.   By our denial, Diaz preserves

the Almendarez-Torres issue for further review.   We pretermit

further briefing, however, and AFFIRM the judgment of the

district court because Apprendi did not overrule Almendarez-

Torres.   See Apprendi, 530 U.S. at 490; United States v.

Izaguirre-Flores, 405 F.3d 270, 277-78 (5th Cir.), cert. denied,

126 S. Ct. 253 (2005); United States v. Mancia-Perez, 331 F.3d

464, 470 (5th Cir. 2003).

     Accordingly, counsel’s motion for leave to withdraw is

DENIED, and the judgment of the district court is AFFIRMED.
