                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                             No. 01-50020
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

GABRIEL GARCIA-MARISCAL,
also known as Gabriel Antonio Garcia,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. EP-00-CR-1088-ALL-H
                       --------------------
                          August 23, 2001

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

PER CURIAM:*

     Gabriel Garcia-Mariscal appeals the 41-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of 8

U.S.C. § 1326.    Garcia-Mariscal argues that his sentence should

not have exceeded the two-year maximum term of imprisonment

prescribed in 8 U.S.C. § 1326(a).    Garcia-Mariscal acknowledges

that his argument is foreclosed by the Supreme Court’s decision

in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but



     *
        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that this opinion should not be published and is not precedent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. 01-50020
                               -2-

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).    Garcia-

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

court is AFFIRMED.

     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.
