               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-21163
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

CIPRIANO BARRAZA-CARRILLO,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-01-CR-38-1
                       --------------------
                         October 30, 2002

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Cipriano Barraza-Carrillo appeals the 33-month sentence

imposed following his plea of guilty to a charge of being found

in the United States after having been deported in violation of

8 U.S.C. § 1326.   For the first time on appeal, Barraza-Carrillo

argues that the sentencing provision of 8 U.S.C. § 1326(b) is

unconstitutional in light of the Supreme Court’s holding in

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that this opinion should not be published and is not precedent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. 01-21163
                               -2-

     Barraza-Carrillo acknowledges that his argument is

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

v. United States, 523 U.S. 224 (1998), but he seeks to preserve

the issue for Supreme Court review.

     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, 531 U.S. 1202 (2001).

Barraza-Carrillo’s argument is foreclosed.   The judgment of the

district court is AFFIRMED.
