               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 00-40742
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

SANTOS OMAR LUNA-ALMARAZ,

                                         Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. B-00-CR-61-1
                        --------------------
                          February 15, 2001

Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Santos Omar Luna-Almaraz (Luna) appeals his conviction and

46-month sentence following his plea of guilty to attempted

illegal reentry after deportation in violation of 8 U.S.C.

§ 1326.   Luna argues 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.

He acknowledges that his argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), but he seeks to

preserve the issue for Supreme Court review in light of Apprendi

     *
        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that this opinion should not be published and is not precedent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. 00-40742
                                -2-

v. New Jersey, 120 S. Ct. 2348 (2000).    Apprendi did not overrule

Almendarez-Torres.   See Apprendi, 120 S. Ct. at 2361-62 & n.15.

Luna’s argument is foreclosed.   See Almendarez-Torres, 523 U.S.

at 235.   Accordingly, Luna’s conviction and sentence are

AFFIRMED.
