                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 00-11169



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JUAN CRUZ CERVANTES-GARCIA,

                                      Defendant-Appellant.


                        - - - - - - - - - -
           Appeal from the United States District Court
          for the Northern District of Texas, Fort Worth
                         (4:00-CR-109-1-Y)
                        - - - - - - - - - -
                            May 22, 2001

                OPINION ON GOVERNMENT’S MOTION

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     The government has moved for dismissal inasmuch as the Appellant

has raised in his sole issue an argument controlled by Almendarez-

Torres v. United States, 523 U.S. 224, 226-27 (1998).          Indeed,

Appellant does not claim otherwise; he concedes that Almendarez-

Torres is the controlling authority and stands in contravention of

his argument.   Nonetheless, he raises the argument to protect 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opinion should not be published and is not precedent except under the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.
right to further review.    We do not agree with the government that

the claim is frivolous because a member of the Supreme Court that

decided Almendarez-Torres has indicated in a related case that the

decision in Almendarez-Torres was mistaken.      See Apprendi v. New

Jersey, 120 S.Ct. 2348, 2367-80 (2000) (Thomas, J., concurring).

Almendarez-Torres was decided by a 5-4 vote with Justice Thomas a

part of the majority.      Under such circumstances, we reject the

contention that Appellant’s appeal is frivolous.        Nonetheless,

because it is unmistakably clear that Almendarez-Torres controls the

disposition of the case and we are bound thereby, we summarily affirm

the judgment of the district court in lieu of dismissal of Appellant’s

appeal.

     Motion Denied, Judgment AFFIRMED.
