               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 00-50600
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

LUIS ALBERTO MARTINEZ-MENDOZA,


                                         Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. DR-00-CR-9-1
                        - - - - - - - - - -
                           June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Luis Alberto Martinez-Mendoza appeals the 77-month sentence

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

in the United States after deportation, a violation of 8 U.S.C.

§ 1326.   He contends that the 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.

     Martinez argues that Apprendi v. New Jersey, 530 U.S. 466

(2000), abrogated Almendarez-Torres v. United States, 523 U.S.


     *
        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that this opinion should not be published and is not precedent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. 00-50600
                               - 2 -

224 (1998).   However, 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, 121 S. Ct. 1214 (2001).   Martinez’s argument is

foreclosed.

     The Government has moved for a summary affirmance in lieu of

filing an appellee’s brief.   In its motion, the Government asks

that the judgment of the district court be affirmed and that an

appellee’s brief not be required.   The motion is granted.

     AFFIRMED; MOTION GRANTED.
