               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT




                            No. 00-50856
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

ARMANDO TORRES-ESPARZA, also known as Armando Esparza,


                                         Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. SA-00-CR-104-1
                       - - - - - - - - - -
                          June 15, 2001

Before WIENER, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Armando Torres-Esparza appeals the 57-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.

     Torres acknowledges that his argument is foreclosed by

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


     *
        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that this opinion should not be published and is not precedent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. 00-50856
                                 - 2 -

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

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

     Torres’ plea agreement included a waiver of his right to

appeal his sentence except for an upward departure from the

Sentencing Guidelines range found by the district court.      He

asserts that the waiver does not preclude our consideration of

the foregoing issue.   Furthermore, the district court did not

advise Torres of his waiver of the right to appeal as required by

Fed. R. Crim. P. 11(c)(6).    We need not decide whether the issue

is waived because 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).   Torres’ 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.
