               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-20157
                          Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JORGE HUMBERTO MARTINEZ-SAENZ,

                                         Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. H-00-CR-308-ALL
                        --------------------
                           August 6, 2001

Before JOLLY, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jorge Humberto Martinez-Saenz was convicted of illegal

reentry into the United States after having been previously

deported.   His base offense level was increased by 16 because his

prior deportation followed an aggravated felony conviction.

     Martinez-Saenz argues that 8 U.S.C. § 1326(b) is a separate

offense such that his indictment was insufficient because it did

not allege that his prior deportation followed an aggravated

felony conviction.   He acknowledges that his argument is

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

     *
        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that this opinion should not be published and is not precedent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. 01-20157
                                 -2-

243 (1998)), wherein the Court held that § 1326(b) established

only a sentencing factor.   Id. at 12.     He contends that the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466,

490 (2000), calls into question the holding in Almendarez-Torres.

Apprendi did not overrule Almendarez-Torres, and we must follow

the rule announced in Almendarez-Torres.      See United States v.

Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 121 S.

Ct. 1214 (2001).

     AFFIRMED.
