               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 00-41325
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

EZEQUIEL ZAPATA-REYES,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-00-CR-315-1
                      --------------------
                         August 21, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Ezequiel Zapata-Reyes (“Zapata”) appeals the 41-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.   For the first time on appeal, he contends

that the felony conviction that resulted in his increased

sentence under 8 U.S.C. § 1326(b) was an element of the offense

that should have been charged in the indictment.

     Zapata acknowledges that his argument is foreclosed by the

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

     *
        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that this opinion should not be published and is not precedent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. 00-41325
                                -2-

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, 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).     Zapata

has failed to demonstrate error, plain or otherwise.      Dabeit, 231

F.3d at 983-84.   The judgment of the district court is

AFFIRMED.
