                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                No. 00-21144

                             Summary Calendar


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                                   versus

GIOVANNI RODRIGUEZ-MARTINEZ,

                                                Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                           (H-00-CR-474-1)

                               July 19, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Giovanni Rodriguez-Martinez appeals the 46-month sentence

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

United States after deportation in violation of 8 U.S.C. § 1326.

He contends that the prior felony conviction that resulted in his

increased sentence under 8 U.S.C. § 1326(b)(2) was an element of

the offense that should have been charged in the indictment.




      *
       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should not be published and is not precedent except under the limited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.
     Rodriguez-Martinez         acknowledges     that      his   argument   is

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

United States,1 but he seeks to preserve the issue for Supreme

Court    review    in   light   of   Apprendi   v.   New    Jersey.2    Since

Apprendi did not overrule Almendarez-Torres,3 Rodriguez-Martinez’s

argument is foreclosed in this court.4          Therefore, the judgment of

the district court is AFFIRMED.




     1
         523 U.S. 224 (1998).
     2
         530 U.S. 466 (2000).

     3
         See Apprendi, 530 U.S. at 489-90.
      4
        See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1214 (2001).

                                       2
