               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 01-10698
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

MARIO CHAVEZ-MAGANA,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 1:01-CR-3-ALL
                      --------------------
                        October 29, 2001

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Mario Chavez-Magana appeals the 71-month term of

imprisonment imposed following his guilty plea conviction of

being found in the United States after removal in violation of

8 U.S.C. § 1326.   Chavez-Magana contends that 8 U.S.C. § 1326(a)

and 8 U.S.C. § 1326(b)(2) define separate offenses.    He argues

that the aggravated felony conviction that resulted in his

increased sentence was an element of the offense under 8 U.S.C.

§ 1326(b)(2) that should have been alleged in his indictment.

Chavez-Magana notes that he pleaded guilty to an indictment which

     *
        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that this opinion should not be published and is not precedent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. 01-10698
                                  -2-

recited only facts and elements supporting a charge of simple

reentry under 8 U.S.C. § 1326(a), and argues that his sentence

exceeds the two-year maximum term of imprisonment which may be

imposed for that offense.    Chavez-Magana acknowledges that his

argument is foreclosed by the Supreme Court’s decision in

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

seeks to preserve the issue for Supreme Court review in light of

the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).

     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).     Chavez-

Magana’s argument is foreclosed.    The judgment of the district

court is AFFIRMED.

     In lieu of filing an appellee’s brief, the Government has

filed a motion to dismiss this appeal.     The Government’s motion

to dismiss is DENIED.   However, in light of our decision to

affirm the district court’s judgment, the Government need not

file an appellee’s brief.

     AFFIRMED; MOTION TO DISMISS DENIED.
