               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-41251
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

LEONEL BALDERAS-ALVARADO,
also known as Ricardo Silva,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 4:00-CR-45-ALL
                       --------------------
                           June 15, 2001


Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     The Federal Public Defender appointed to represent Leonel

Balderas-Alvarado has moved for leave to withdraw and has filed a

brief as required by Anders v. California, 386 U.S. 738 (1967).

Balderas-Alvarado has filed a response to counsel’s motion.

     Our independent review of the brief, the record, and the

response of Balderas-Alvarado discloses one possible nonfrivolous

issue for appeal.   His offense level and sentence were increased

for his having been deported after a prior aggravated-felony

conviction that was not alleged in his indictment.     An argument


     *
        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that this opinion should not be published and is not precedent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. 00-41251
                                 -2-

that the 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 cast into doubt by Apprendi v. New

Jersey, 530 U.S. 466, 489 (2000)(finding it “arguable that

Almendarez-Torres was incorrectly decided”).    Counsel could have

raised the issue on appeal in order to preserve it for Supreme

Court review in light of Apprendi.

     In light of this possible nonfrivolous issue for appeal, we

deny counsel’s motion to withdraw.   By our denying the motion to

withdraw, Balderas-Alvarado 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;

see also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.

2000)(noting that the Supreme Court in Apprendi expressly

declined to overrule Almendarez-Torres), cert. denied, 121 S. Ct.

1214 (2001).   This court must follow the precedent set in

Almendarez-Torres “unless and until the Supreme Court itself

determines to overrule it.”    Dabeit, 231 F.3d at 984 (internal

quotation and citation omitted).

     Finally, the record has not been adequately developed for us

to consider Balderas-Alvarado’s ineffective-assistance-of-counsel

arguments on direct appeal.    See United States v. Haese, 162 F.3d

359, 363 (5th Cir. 1998).

     Accordingly, counsel’s motion for leave to withdraw is

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