               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-20438
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

SAUL JESUS VARGAS,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-99-CR-702-1
                      --------------------
                         April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Saul Jesus Vargas appeals his guilty-plea conviction and

sentence for re-entering the United States illegally after

deportation in violation of 8 U.S.C. § 1326.   Vargas’ sentence

was enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(A).

     Vargas first argues that in view of the Supreme Court’s

decision in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63

(2000), his sentence should be limited to the two-year statutory

maximum sentence for a violation of 8 U.S.C. § 1326(a).   Vargas

also argues that the felony conviction that resulted in his

     *
        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that this opinion should not be published and is not precedent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. 00-20438
                                 -2-

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

the offense that should have been charged in his indictment.

Vargas’ argument is foreclosed by the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although the Supreme Court, in Apprendi, noted that Almendarez-

Torres may have been incorrectly decided, the Court did not

overrule Almendarez-Torres.   United States v. Dabeit, 231 F.3d

979, 984 (5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).

     Vargas next argues that the district court incorrectly

applied § 2L1.2(b)(1)(A) of the Sentencing Guidelines in

determining his sentence.   Vargas has not challenged the use of

his prior theft conviction as an aggravated felony which would

support the base offense level increase.   Upon reviewing the

record, we conclude that the district court properly applied

§ 2L1.2(b)(1)(A) in this case.   United States v. Yanez-Huerta,

207 F.3d 746, 747 (5th Cir.), cert. denied, 121 S. Ct. 432

(2000).   Finally, we are without jurisdiction to review the

district court’s refusal to depart downward because there is no

indication in the record that the district court believed it

lacked the authority to do so.   United States v. Landerman, 167

F.3d 895, 899 (5th Cir. 1999).

     AFFIRMED.
