               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-11419
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

FABIAN CASTRO-BARRON,
also known as J. Natividad-Deleon,
also known as Natividad Deleon,
also known as Irineo Tapia-Baron,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 4:00-CR-143-1-Y
                      --------------------
                         August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Fabian Castro-Barron appeals the 46-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after deportation in violation

of 8 U.S.C. § 1326.   For the first time on appeal, Castro-Barron

argues that his guilty plea was involuntary.   Castro-Barron

contends that the magistrate judge failed to advise him during

the plea colloquy that a prior aggravated felony conviction is an


     *
        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that this opinion should not be published and is not precedent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. 00-11419
                                -2-

element of the offense under 8 U.S.C. § 1326(b)(2), which the

government would have to prove to a jury beyond a reasonable

doubt.   Castro-Barron acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but 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, 121 S. Ct. 1214 (2001).      Castro-

Barron’s argument is foreclosed.   The judgment of the district

court is AFFIRMED.

     In lieu of filing an appellee’s brief, the Government has

filed a motion asking this court to dismiss this appeal or, in

the alternative, to summarily affirm the district court’s

judgment.   The Government’s motion to dismiss is DENIED.    The

motion for a summary affirmance is GRANTED.    The Government need

not file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED; MOTION FOR SUMMARY
     AFFIRMANCE GRANTED.
