               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-50830
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

REYES ZAPATA-GARCIA,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. DR-99-CR-631-1-WWJ
                       --------------------
                          April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Represented by the Federal Public Defender, Reyes Zapata-

Garcia (Zapata), a/k/a Reyes Zapata-Sandoval, a/k/a Zapata Reyes-

Garcia, appeals his 63-month sentence imposed following his jury-

trial conviction for illegal reentry subsequent to deportation.

See 8 U.S.C. § 1326.

     Zapata 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

and proved by the prosecution to the jury beyond a reasonable

     *
        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that this opinion should not be published and is not precedent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. 00-50830
                                 -2-

doubt.    Zapata acknowledges that his argument is foreclosed by

the Supreme Court’s decision in Almendarez-Torres v. United

States, 523 U.S. 224 (1998), but he seeks to preserve the issue

for Supreme Court review in light of the decision in Apprendi v.

New Jersey, 120 S. Ct. 2348 (2000).    He also attempts to

distinguish Almendarez-Torres based on the procedure resulting in

the conviction:    Zapata was convicted by a jury, and the

defendant in Almendarez-Torres was convicted pursuant to a guilty

plea.    See Almendarez-Torres, 523 U.S. at 227.   The asserted

distinction is unpersuasive.

     Apprendi did not overrule Almendarez-Torres.     See Apprendi,

120 S. Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984

(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001).       Zapata’s

argument is foreclosed.    The judgment of the district court is

AFFIRMED.
