                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                September 10, 2004
                           FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk

                               No. 04-10279
                             Summary Calendar


UNITED STATES OF AMERICA

                                                Plaintiff-Appellee,

versus

HUMBERTO GONZALES-GONZALES,
also known as Roberto Soto Flores,

                                                Defendant-Appellant.




           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:03-CR-194-ALL-P


Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

     Huberto Gonzales-Gonzales (“Gonzales”) entered a guilty plea

to a violation of 8 U.S.C. § 1326 for being found in the United

States   subsequent   to    deportation   and   without   having   obtained

permission to re-enter.      The district court sentenced Gonzales to

sixty-four months of imprisonment and three years of supervised

release.



     *
      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this opinion should not be published and is not precedent except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.
       The sole issue raised in adversarial fashion is whether

Gonzales’s prior conviction that resulted in his increased sentence

under 8 U.S.C. § 1326(b) was an element of the offense that had to

be alleged in the indictment.               Gonzales acknowledges that his

argument is foreclosed by Almendarez-Torres,1 but he seeks to

preserve the issue for Supreme Court review in light of the Court’s

more       recent   Apprendi   decision.2      Apprendi   did   not   overrule

Almendarez-Torres.3        Accordingly, the judgment of the district

court is AFFIRMED.       The Government’s motion for summary affirmance

is GRANTED.         The Government’s motion to dismiss the appeal and

motion for an extension of time to file a brief are DENIED as moot.




       1
        Almendarez-Torres v. United States, 523 U.S. 224 (1998).
       2
        Apprendi v. New Jersey, 530 U.S. 466 (2000).
       3
      See id. at 489-90; United States v. Mancia-Perez, 331 F.3d
464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).

                                       2
